Remember July 1, 2013? Providers across North Carolina probably still suffer PTSD at the mention of the “go-live” date for NCTracks. If you remember July 1, 2013, you probably also remember that my former firm filed a class action lawsuit on behalf of the physicians in NC who suffered losses from NCTracks’ inception.
There was oral argument at the NC Business Court.
“Ultimately, the burden of proving that administrative remedies are inadequate in this action rests on Plaintiffs. Jackson, 131 N.C. App. at 186. Although sympathetic to the apparently difficult administrative process, the Court concludes that, particularly in light of the fact that not a single Plaintiff has attempted to use the available administrative procedures to resolve their Medicaid reimbursement claims, Plaintiffs have simply failed to satisfy this burden. Accordingly, Defendants’ Motions to Dismiss pursuant to Rule 12(b)(1) should be GRANTED.”
While I understand the logic applied to come to this decision, I do not necessarily agree with the outcome. There are exceptions to the exhaustion of administrative remedies, which, in my humble opinion, are present here.
(This blog contains my own opinions as to the NCTracks ruling and not those of my present or former firms. It is not intended to claim any ruling was incorrect or inconsistent with case law, rules, and statutes).
(Try to read the foregoing sentences in a fast-paced, tiny, whispery voice, like a pharmaceutical commercial).
Regardless, where does this decision leave the physicians in NC who suffered under an, admittedly, botched, beginning of NCTracks? (Even DHHS recognized the imperfections at the beginning).
First, what is the doctrine of failure of administrative remedies? (I was going to start with what is NCTracks, but you do not know what NCTracks is, you probably should begin reading some of my earlier blog posts: blog; and blog; and blog).
In a nutshell, the exhaustion doctrine dictates that if a party disagrees with an adverse action of a state agency that the party must exhaust its administrative remedies before asking for relief from a civil court judge.
Law 101: The Office of Administrative Hearings (OAH) has limited jurisdiction. It only has jurisdiction over those matters specifically granted to it by statute. If you have an issue with a final adverse decision of a state agency, you sue at OAH. In other words, if you want to sue a state agency, such as DHHS, or any of its agents, like an MCO, you sue at OAH, not Superior Court. An Administrative Law Judge, or ALJ, presides over the court. While OAH is more informal than Superior Court, OAH follows the rules of civil procedure unless an administrative rule exists.
If a Superior Court were to find that the party failed to exhaust its administrative remedies, then the court would find that the party lacked subject matter jurisdiction; i.e., the court is holding that it does not have the authority to determine the legal question at issue.
You would be back to square one, and, potentially, miss an appeal deadline.
In the Medicaid world this is similar to a managed care organization (MCO) having an informal review process internally which would be required prior to bringing a Petition for Judicial Review at OAH.
Were you to bring a Petition for Judicial Review at OAH prior to attending an informal reconsideration review at the MCO, the ALJ would, most likely, dismiss the case for failure to exhaust your administrative remedies.
But in the NCTracks case, the Plaintiffs sued DHHS and Computer Science Corporation (CSC). CSC is, arguably, not a state agency. The only way in which you could sue CSC at OAH would be for an ALJ to determine that CSC is an agent of a state agency. And, who knows? Maybe CSC is an agent of DHHS. Judge McGuire does not address this issue in his Order.
Many of you may wonder why I opine that CSC is not an agent of the state, yet surmise that the MCOs are agents of DHHS. Here is my reasoning: DHHS, in order to bestow or delegate its powers of administering behavioral health to the MCOs, was required to request a Waiver from the federal government. Unlike with CSC, DHHS merely contracted with CSC; no Waiver was required. That Waiver (two Waivers, really, the 1915(b) and 1915(c)) allow the MCOs to step into the shoes of DHHS….to a degree…and only as far as was requested and approved by CMS…no more. I view CSC as a contractor or vendor of DHHS, while the MCOs are limited agents.
Going back to NCTracks…
One can surmise that, because Judge McGuire dismissed the entire lawsuit and did not keep CSC as a party, Judge McGuire opined that CSC is an agent of DHHS. But there is a possibility that the providers sue in OAH and an ALJ determines that OAH is not a proper venue for CSC. Then what? Back to Superior Court and/or Business Court?
Why do you have to exhaust your administrative remedies? It does seem too burdensome to jump through all the hoops.
The rationale behind requiring parties to exhaust their administrative remedies is that those entities (such as OAH) that hear these specialized cases over and over and develop an expertise to decide the certain esoteric matters that arise under their jurisdiction. Also, the doctrine of separation of powers dictates that an agency created by Congress should be allowed to carry out its duties without undue interference from the judiciary.
For example, Judges Don Overby and Melissa Lassiter, ALJs at the NC OAH have, without question, presided over more Medicaid cases than any Superior Court Judge in the state (unless a Superior Court is a former ALJ, like Judge Beecher Gray). The thinking is that, since Overby and Lassiter, or, ALJs, generally, have presided over more Medicaid cases than the average judge, that the ALJs have formed expertise in area. Which is probably true. It cannot be helped. When you hear the same arguments over and over, you tend to research the answers and form an opinion.
So there is the “why,” what about the exceptions?
There are exceptions to the general rule of having to exhaust your administrative remedies that may or may not be present in the NC tracks case. If you ask me, exceptions are present. If you ask Judge McGuire vis-à-vis his Order, there are no exceptions that were applicable.
One such exception to the general rule that you must exhaust your administrative remedies is if bringing a case at the informal administrative level would be futile. If you can prove futility, then you are not required to exhaust your administrative remedies. Another exception is if you are requesting monetary damages that cannot be awarded at the administrative law level.
Where the administrative remedy is inadequate, a plaintiff is not required to exhaust that remedy before turning to the courts. Shell Island, 134 N.C. App. at 222. The burden of establishing the inadequacy of an administrative remedy is on the party asserting inadequacy. Huang v. N.C. State Univ., 107 N.C. App. 110, 115 (1992).
What DHHS argued, in order to have the case dismissed for lack of subject matter jurisdiction, and Judge McGuire agreed with, is:
that adequate administrative remedies exist for all health care providers when NCTracks improperly denies claims.
This holding is not without questions.
Some providers re-bill denied claims over and over. There is a question as to when do you appeal? The first denial? The second? The Fourteenth? At which point do you accept the denial from NCTracks as a “final agency decision?” Do you use the “3 strikes and you’re out” rule? Do you give NCTracks a mulligan? Or do you wait until NCTracks “fouls out” with a 6th denial?
Another question that remains hanging in the wake of the NCTracks dismissal is how will providers handle the sheer volume of denials. Some providers receive voluminous denials. Some RAs can be hundreds of pages long.
Let’s contemplate this argument in a hypothetical. You run a nephrology practice. The bulk of your patients are Medicaid (90% Medicaid, although 50% are dual eligible with Medicaid/Medicare). You have approximately 500-700 patients, who come see your doctors because they are in need of dialysis. You know that if a person does not receive dialysis that there is a chance that the person can enter Stage 5 (end stage renal disease) and die quickly. However, upon July 1, 2013, when NCTracks went live, you stopped receiving Medicaid payments completely. Do you stop accepting and treating your Medicaid patients? Obviously you do not stop accepting Medicaid patients? But your practice cannot sustain itself. Even if you continue to treat Medicaid patients, at some point, you will be out of business, failing to meet payroll, and being forced to involuntarily not treat your patients.
Your patients in need of dialysis come to the office 3x per week. A single hemodialysis treatment typically costs up to $500 or more — or, about $72,000 or more per year for the typical three treatments per week.
Let’s approximate with 500 patients. 500 patients multiplied by 3x per week is 1,500 per week. That is 1,500 denials per week. What Judge McGuire is saying is that your office is burdened with appealing 1,500 denials per week. Or 6,000 denials per month. Or 72,000 appeals per year.
Which of your office staff will be charged with appealing at OAH 72,000 denials per year? The physicians? You, the office manager (because you obviously have nothing else to do)? The receptionist? Hire someone new? For how much? How will you recoup the cost of appealing 72,000 denials per year? How many hours does it cost to appeal one? Hire an attorney?
Obviously, my example is one of an extreme case with 100% denials. But the sentiment holds true even for 30%, 40%, or 50% of denials. The sheer volume would be overwhelming.
And you can imagine the backlog that would be created at OAH.
Judge McGuire’s decision that plaintiffs failed to exhaust their administrative remedies issue appears to be based, in part, that because no plaintiff had tried to go to OAH, plaintiffs could not convince him that the administrative remedy was non-functional.
“Significantly, none of the Plaintiffs even attempted to use the administrative procedures to address the failure to pay claims and other issues they allegedly encountered in attempting to use NCTracks. Instead, Plaintiffs allege that the administrative process would have been futile and inadequate to provide the relief they seek.” See Abrons Family Practice v. DHHS and CSC, ¶ 36 (emphasis added).
Well, first of all, when I moved to Gordon & Rees, I left this case in the capable hands of my former partners, so I have no special intelligence, but I wager that this is not the end.
There are choices. They could:
(1) Appeal the decision to the Court of Appeals;
(2) File an insurmountable number of petition’s at OAH; or
(3) Do nothing.
For some reason, I have my doubts that #3 will occur.
What do you think??? What should the Plaintiffs do now in the wake of this dismissal?
NC Medicaid Provider, “Yes, You Have a Case Against CSC,” and the Top 5 Reasons no Lawsuit is Pending Against CSC
62 days with no Medicaid reimbursements. Would you survive? Would your company survive?
Many providers are not surviving the switch to NCTracks. Yet what do we hear from DHHS? “NCTracks is on Track.”
Yesterday, during my lunch hour, I made a mad dash to the mall. My daughter is starting 3rd grade tomorrow, and she was in dire need of some new jeans.
My phone rang as I was comparing the price of jeans. Ann (short for anonymous) called. She wanted to know whether I was bringing a class action lawsuit against CSC, the company that created NCTracks. This is a common phone call for me. Today, I received another phone call similar, but from Nanny (another short for anonymous).
Both Ann and Nanny informed me that they run small, Medicaid provider companies. Medicaid reimbursements constitute most of both Ann and Nanny’s companies’ income.
Ann and Nanny have not been paid for Medicaid services rendered since June 20, 2013. 62 days ago.
Both want to pursue legal action. And Ann and Nanny are not alone. I have had approximately 25-35 Medicaid providers contact me since July 1, 2013, regarding bringing a lawsuit against CSC.
Do providers, who have not been reimbursed since June 20, 2013, have a legal cause of action against CSC? I believe, yes. Providers are entitled to prompt payments of Medicaid reimbursements. In fact, per federal law, 90% of clean claims must be paid to providers within 30 days. Obviously, 62 days is well-past 30 days.
My advice to providers who want to bring legal action against CSC?
GO FOR IT!!
BUT, understand what a lawsuit entails. I have made a list below of the top 5 reasons, I believe, no lawsuit is pending against CSC now. For those providers wanting to bring legal action, read the items below. Make a reasoned decision as to whether a lawsuit is feasible for you.
So why is there not a lawsuit pending against CSC?
Here are the top 5 reasons a lawsuit is not pending against CSC:
(Disclaimer: I am neither pro nor con for bringing a lawsuit. This blog is in no way an attempt to bring a lawsuit. I am merely trying to inform providers as to what details need to be addressed before ever bringing a lawsuit. In many cases, for the reasons stated below, a lawsuit is not feasible. Each provider must make up its own mind as to whether a lawsuit would benefit them).
1. Lawsuits are expensive.
Except for plaintiffs’ lawyers, for the most part, attorneys require a retainer and are paid by the hour.
A lawsuit against CSC would require:
- Research for filing the complaint (Which venue is best? What defenses will CSC raise? What causes of action do we assert?
- Drafting/Filing the Complaint
- Defending against CSC’s Motion to Dismiss
- Drafting Written Discovery
- Taking Depositions (each deposition COULD run $10,000+)
- Responding to Written Discovery
- Defending Depositions
- Hiring Expert Witnesses
- Depositions of Expert Witnesses
- Motions to Compel/Defense of
- Motions for Summary Judgment
- Defend CSC’s Motions for Summary Judgment
- Pre-Trial Motions
- Prepare for Trial
- And probably much more
2. Lawsuits are the opposite of fast.
If you want an immediate remedy (such as getting paid for work rendered, a civil lawsuit for damages is not the way to go, at least, it should not be sole remedy sought). An injunction may be the better approach…or taking the time to personally drive to NCTracks…
Think of this: After filing a complaint, the defendant gets 30 days (in state court) to file a response; however, it is pretty standard for the defendant to request an extension. Then the defendant gets 60 days to answer the complaint. Filed concurrently with the defendant’s Answer, most likely, would be a Motion to Dismiss. A hearing would have to be scheduled for the Motion to Dismiss, plus the legal briefs that would need to filed. We are talking about 4-5 months before we even get into discovery. Then written discovery and depositions over the course of 9 month to a year. If trial is scheduled within the first year and a half, you have to understand that whoever loses will appeal…. You get the point….
3. Damages are….?
Here’s the problem with bringing a lawsuit against CSC. You file a complaint alleging over $10,000 in damages (the minimum amount of damages to meet jurisdictional requirements of Superior Court). Then 1 day later, CSC pays 100% of your claims.
What are your damages?
It depends. Have you had to terminate staff? Obtain loans and pay interest? Close an office?
Obviously, the above-referenced examples would be damages above and beyond the mere payment. But if your only damages is nonpayment, you may want to re-think a civil suit for monetary damages.
4. Lawsuits are Time Consuming.
Not only are lawsuits time-consuming for the attorneys, but the plaintiffs also will need to devote time to the litigation.
5. Plaintiffs must be deposed.
If you bring a lawsuit, you have to be deposed. I have never been deposed, but I have deposed enough people to know that depositions, generally, are not fun for the person deposed.
So there you have it.
“The Top 5 Reasons a Lawsuit is Not Pending Against CSC.”
Do you have a legal cause of action against CSC? Most likely. Are you entitled to prompt payments of Medicaid reimbursements? Yes.
But before filing that lawsuit, remember what a civil lawsuit for monetary damages entails. Make sure you are prepared!
If you ARE prepared, GO FOR IT!!!!
So many providers in North Carolina who accept Medicaid have contacted me asking whether they have a legal case to bring a lawsuit against Computer Sciences Corporation (CSC), the company who created and is running NCTracks, for monetary damages.
In order to determine whether grounds for a lawsuit exist, you need to determine, generally: (a) Did CSC have a duty to timely pay Medicaid reimbursements to you; (b) Did CSC breach that duty; (c) Did you suffer monetary damages?
42 C.F.R. 447.45 states, in pertinent part, (a) Basis and purpose. This section implements section 1902(a)(37) of the Act by specifying—(1) State plan requirements for—(i) Timely processing of claims for payment…”
What does “timely” mean?
- The agency must pay 90 percent of all clean claims from practitioners, who are in individual or group practice or who practice in shared health facilities, within 30 days of the date of receipt.
- The agency must pay 99 percent of all clean claims from practitioners, who are in individual or group practice or who practice in shared health facilities, within 90 days of the date of receipt.
90%….within 30 days. Let’s see…last payments were June 20, 2013. It is July 26, 2013. No payments have been rendered to many providers in 36 days, and, according to one provider, he was told that he will receive reimbursement for at least another 2 weeks.
Hmmmmm….I do not think NCTracks is adhering to the 30 day rule. That said, if I were the attorney for NCTracks, I would argue that the providers not receiving payments within 30 days were not submitting “clean claims,” to which I, as myself, would say, “Prove it.”
I don’t think the Department of Health and Human Services (DHHS) is intentionally not paying providers Medicaid reimbursements for services rendered. I don’t think that DHHS meant for NCTracks to not pay some providers.
Regardless of intent, it is correct to say that DHHS went “live” with NCTracks without a “live” trial run and without conducting proper tests necessary prior to going “live.”
According to the May 2013 State Auditors’ Performance Audit of NC DHHS’ Implementation of NCTracks:
The Department has failed to fully test the system, and the production testing process has flaws.
• Key decisions about the addition of 1,500 user accounts and privacy and security procedures have yet to be made, increasing uncertainty about project readiness.
• A vendor hired to oversee the project did not conduct independent verifications as expected by the federal agency that administers Medicaid, and another vendor was permitted to set its own guidelines for whether its work was acceptable.
• No formal criteria exists to determine whether the new system is ready to go-live.
Why DHHS pushed NCTracks to go “live” on July 1, 2013, despite obvious concerns cited by the State Auditor, we may never know. It reminds me, somewhat, of kudzu and the fact that humans like to think that everything is controllable.
Kudzu is not native to America. Kudzu was originally introduced to America from Japan at the Japanese pavilion in the 1876 Centennial Exposition in Philadelphia. Kudzu was touted as a high-protein content cattle fodder and as a cover plant to prevent soil erosion. So people planted kudzu, thinking that kudzu would be an asset to our environment. Instead, kudzu had drastic negative effects on our environment. Kudzu is often dubbed “The Vine That Ate the South.” It has spreads at the rate of 150,000 acres (61,000 ha) annually.
The problem with kudzu is that kudzu kills or damages other plants by smothering them under a blanket of leaves, encompassing tree trunks, breaking branches, or even uprooting entire trees. Kudzu’s ability to grow quickly, survive, and acquire resources quickly allows it to out-compete native species.
So, think about it, we wanted kudzu because we thought kudzu would be a good thing. We did not research kudzu’s growth rate or kudzu’s interactions with American foliage. We did not perform test sites of kudzu to analyze the effects of kudzu on our environment. We didn’t even grow kudzu in a controlled environment to determine whether kudzu’s rate of growth would negatively impact our plants. Oh no, we saw kudzu, and, like a kid in a candy store, we said, “Oooohhhh….we want kudzu!” So we planted kudzu. We thought we could control kudzu.
I don’t think the Japanese, who introduced kudzu, nor the Americans, who accepted the kudzu, intentionally planted kudzu in order to kill plants and trees. I don’t think that the people who planted the kudzu meant for kudzu to have drastic negative consequences to our environment.
Regardless of intent, people who planted kudzu did so without fully testing kudzu’s impact on our environment.
In reality, kudzu is estimated to have lost us approximately $100–500 million per year in forest productivity…as in what we could have made by trees actually growing. In addition, it takes about $5,000 per hectare (2.5 acres) per year to control kudzu. For power companies, it costs about $1.5 million per year to repair damage to power lines. See Forseth. Jr., I.N. and Innis, Anne F.“Kudzu (‘‘Pueraria montana’’): History, Physiology, and Ecology Combine to Make a Major Ecosystem Threat” Critical Reviews in Plant Sciences, Vol. 23, 401-413, 2004.
Similarly, DHHS (regardless which administration) saw a new computer system, NCTracks, and like the kid in the candy store, said, “Ooooohhhh…we want NCTracks!” So we purchased NCTracks. We thought we could control NCTracks.
We certainly did not perform all necessary tests on NCTracks before going “live.”
Now, due to the failure to fully test NCTracks and the “glitches” surrounding NCTracks, NCTracks, like kudzu, is producing drastic negative effects on our health care providers. Some providers are losing hundreds of thousands of dollars per week due to NCTracks. One provider told me that he already closed one location and terminated 6 staff due to NCTracks.
NCTracks is not, at least for many, many health care providers, timely paying Medicaid reimbursements.
But what are the monetary damages? What if you file a lawsuit against CSC and the day after you file a lawsuit you are paid in full? Do you still have any damages?
I got an email from a pediatric physician; we will call her Amy. For the past few weeks, Amy has been unable to sleep. She has not been paid since June 20, 2013. Unlike most providers, she does not limit the number of Medicaid recipients at her practice, and Medicaid is 85% of her income.
Amy spent her one-week-long vacation on-hold with NCTracks 70% of the time. She is behind on work. She has decreased her clinical hours. Amy was forced to ask her parents for a loan to make payroll, and still has not paid all her staff completely.
Last week, Amy and her husband did not have enough money for groceries until her husband was paid on Friday.
Yesterday, when Amy contacted NCTracks, she was told that, according to NCTracks’ records, Amy was paid. But no money is in Amy’s bank account.
Even if Amy were paid tomorrow by NCTracks, don’t you think that Amy suffered additional damages?
Maybe we should just plant a bunch of kudzu around NCTracks and CSC.