Friday evening WRAL covered my Preliminary Injunction hearing at the Office of Administrative Hearings (OAH).
Being a health care professional who accepts Medicare and/ or Medicaid can sometimes feel like you are Sisyphus pushing the massive boulder up a hill, only to watch it roll down, over and over, with the same sequence continuing for eternity. Similarly, sometimes it can feel as though the government is the princess sleeping on 20 mattresses and you are the pea that is so small and insignificant, yet so annoying and disruptive to her sleep.
Well, effective immediately – that boulder has enlarged. And the princess has become even more sensitive.
On May 18, 2016, the Department of Health and Human Services (HHS) published a Final Rule to implement Section 1557 of the Affordable Care Act (ACA). Section 1557 of the ACA has been on the books since the ACA’s inception in 2010. However, not until 6 years later, did HSD finally implement regulations regarding Section 1557. 81 Fed. Reg. 31376.
The Final Rule became effective July 18, 2016. You are expected to be compliant with the rule’s notice requirements, specifically the posting of a nondiscrimination notice and statement and taglines within 90 days of the Final Rule – October 16, 2016. So you better giddy-up!!
First, what is Section 1557?
Section 1557 of the ACA provides that an individual shall not, on the basis of race, color, national origin, sex, age, or disability, be
all health programs and activities that receive federal financial assistance through HHS, including Medicaid, most Medicare, student health plans, Basic Health Program, and CHIP funds; meaningful use payments (which sunset in 2018); the advance premium tax credits; and many other programs.
Section 1557 is extremely broad in scope. Because it is a federal regulation, it applies to all states and health care providers in all specialties, regardless the size of the practice and regardless the percentage of Medicare/caid the agency accepts.
HHS estimates that Section 1557 applies to approximately 900,000 physicians. HHS also estimates that the rule will cover 133,343 facilities, such as hospitals, home health agencies and nursing homes; 445,657 clinical laboratories; 1300 community health centers; 40 health professional training programs; Medicaid agencies in each state; and, at least, 180 insurers that offer qualified health plans.
So now that we understand Section 1557 is already effective and that it applies to almost all health care providers who accept Medicare/caid, what exactly is the burden placed on the providers? Not discriminating does not seem so hard a burden.
Section 1557 requires much more than simply not discriminating against your clients.
Section 1557 mandates that you will provide appropriate aids and services without charge and in a timely manner, including qualified interpreters, for people with disabilities and that you will provide language assistance including translated documents and oral interpretation free of charge and in a timely manner.
In other words, you have to provide written materials to your clients in their spoken language. To ease the burden of translating materials, you can find a sample notice and taglines for 64 languages on HHS’ website. See here. The other requirement is that you provide, for no cost to the client, a translator in a timely manner for your client’s spoken language.
In other words, you must have qualified translators “on call” for the most common 15, non-English languages in your state. You cannot rely on friends, family, or staff. You also cannot allow the child of your client to act as the interpreter. The clients in need of the interpreters are not expected to provide their own translators – the burden is on the provider. The language assistance must be provided in a “timely manner. “Further, these “on call” translators must be “qualified,” as defined by the ACA.
I remember an English teacher in high school telling the class that there were two languages in North Carolina: English and bad English. Even if that were true back in 19XX, it is not true now.
Here is a chart depicting the number of non-English speakers in North Carolina in 1980 versus 2009-2011:
As you can see, North Carolina has become infinitely more diverse in the last three decades.
And translators aren’t free. According to Costhelper Small Business,
It seems likely that telehealth may be the best option for health care providers considering the cost of in-person translations. Of course, you need to calculate the cost of the telehealth equipment and the savings you project over time to determine whether the investment in telehealth equipment is financially smart.
In addition to agencies having access to qualified translators, agencies with over 15 employees must designate a single employee who will be responsible for Section 1557 compliance and to adopt a grievance procedure for clients. Sometimes this may mean hiring a new employee to comply.
The Office of Civil Rights (“OCR”) at HHS is the enforcer of Section 1557. OCR has been enforcing Section 1557 since its inception in 2010 – to an extent.
However, expect a whole new policing of Section 1557 now that we have the Final Rule from HHS.
BNA’s Health Care Policy Report:
Posted March 5, 2014
The Obama administration March 5 said consumers can keep their health plans that don’t comply with the Affordable Care Act for two more years, as part of a release of new ACA rules and policies.
The Department of Health and Human Services noted that in fall 2013, the administration extended through 2014 noncompliant health plans in the small group and individual health insurance markets, for insurers that received permission from their state to do so. Now, the department is extending its “transitional policy for two years,” to policy years beginning on or before Oct. 1, 2016.
“This gives consumers in the individual and small group markets the choice of staying in their plan or joining a new Marketplace plan as the new system is fully implemented,” the HHS said.
The HHS also issued a comprehensive ACA insurance markets rule (CMS-9954-F) called the Notice of Benefit and Payment Parameters for 2015. The regulation includes provisions on premium stabilization; open enrollment for 2015; annual limitations on cost sharing; consumer protections; financial oversight; and the Small Business Health Options Program, or SHOP.
For the temporary “risk corridors program,” which helps stabilize premiums when enrollees are much sicker or much healthier than expected, the HHS said it intends to operate the program in a budget-neutral manner, with payments coming in equaling the amount of money going out, “while helping to ensure that prices remain affordable in 2015 and beyond.”
The Treasury Department and the Internal Revenue Service also released final rules (TD 9661) March 5 to implement the information reporting provisions for insurers and certain employers under the ACA that take effect in 2015. Treasury said the final rules on information reporting by employers “will substantially streamline reporting requirements for employers, particularly those that offer highly affordable coverage to full-time employees.” Treasury also released final rules (TD 9660) to provide guidance for reporting by insurers and other parties that provide health coverage under the ACA.
An HHS bulletin on the plan extension is at http://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/transition-to-compliant-policies-03-06-2015.pdf. The HHS and Treasury rules are posted at the public inspection website: http://www.federalregister.gov/public-inspection.
A dental practice was audited by Public Consultant Group (PCG). Here is their story: (Insert a Dum, Dum, Dum).
For those of you who do not know who PCG is: CONGRATULATIONS!
But there are those of us who know that PCG is a hired contractor by the state or the Division of Medical Assistance (DMA) to investigate providers who accept Medicaid in North Carolina to detect clinically suspect behaviors or administrative billing patterns, which could indicate potentially abusive or fraudulent activities.
Whew!! Sounds serious!!
I am SURE that, for such a serious mission, PCG employs only the most-highly competent employees who are super, duper knowledgeable about the esoteric idiosyncrasies of the Medicaid system, the appropriate policy(ies),and federal and state rules and regulations, right?
Hmmmm…out of sheer curiosity I googled employment opportunities at PCG. I found a position in Albany, NY for an “Instructional Trainer.” Duties include:
“Coaches agencies and providers on programs and information to ensure compliance with departmental, state, and federal laws, rules, regulations, guidelines, processes, and procedures.”
Dag on!!! Shut the front door! This person will be coaching agencies and providers, ensuring compliance with laws, rules, regulations, guidelines….SURELY this person must be a lawyer, right????
So then I looked at the “required experience:”
A BS degree is a related field preferred??
First, what is a related field for regulations and compliance? Political Science?
Folks, I double-majored in English and Political Science and I can promise you that after graduating from NCSU with a double major in English and “Poli Sci” I was NOWHERE competent enough to handle a Medicaid audit of a provider. I may have been able to draft a darn good essay or quote the U.S. Senators and their bipartisan affiliations, but a Medicaid expert, I was not. And this position was for an “Instructional Trainer!” A TRAINER!! As in, one who trains. Implicit in the job title is “One who has been trained” or “One who has the knowledge to train.”
I give this background to set the stage:
On one side: Dentists who have been managing a successful dental practice for years and years after attending college and dental school.
And on the other side: A college Political Science major who is able to recite all the states and its capitols and all the governors of each state (This is not to say that all employees at PCG are inept…or not qualified for their particular position. I actually know a couple of PCG employees of whom I think highly (this is not directed toward you, my fine two friends). This is merely a generalization and stage-setting for the all-too-common errors I see committed by the “entry-level” auditors).
A well-established dental practice. All the walls are wooden (painted white) and there are 200+ handprints on the lobby wall with all the little pediatric customers’ names on them. There is a waiting room with toys and books.
Act 1: A few entry-level PCG auditors knock on the door of the dental practice (They don’t actually knock, because it is a dental practice, not a home, but you get the drift).
Receptionist: How may we help you?
Auditor 1: We are here to conduct a Medicaid post-payment audit.
Receptionist: Huh? (With an open, gape-jawed expression)
Auditor 2: A post-payment Medicaid audit.
Auditor 1: We need to see all the documents of your Medicaid clients from February 2011 through May 2011.
All right, folks, I am sure you get the point. So the audit occurs and a few months later, the dental practice receives a Tentative Notice of Overpayment for $300,000.00. The #1 main reason PCG found noncompliance was:
“The attending provider number billed does not match the individual dentist who rendered the service and does not support service billed. Citation: Clinical Coverage Policy No. 4A: January 1, 2011 Attachment A.1 Instructions for filing a Dental Claim 53-56…”
Now, mind you, in the DMA Clinical Policy No. 4A, revised March 1, 2013, the policy states “Enter the attending provider’s NPI for the individual dentist rendering service. (This number must correspond to the signature in field 53.)”
In 2013, it is quite clear that the attending provider and the provider rendering the services must be identical. But this audit was a post-payment review, meaning that the documents audited were from 2011, not 2013.
In 2011, the DMA Clinical Policy No. 4A, revised January 1, 2011, states “Enter the attending provider’s NPI for the individual dentist rendering service. (This number should correspond to the signature in field 53.)”
See the difference? (One of these things is not like the others).
Must v. Should
Must equals no other choice. Should denotes guidance; simply a suggestion.
However, think of this, if you were a college graduate who majored in Political Science and were now auditing Medicaid providers, would you think to distinguish the difference between “should” and “must?”
The Centers of Medicare and Medicaid (CMS) put forth a new proposal setting forth aggregate reductions to state Medicaid disproportionate share hospital (DSH) allotments from 2014 – 2020.
First of all, what is DSH? (DSH) are payments to hospitals that serve a significantly disproportionate number of low-income patients; eligible hospitals are referred to as DSH hospitals. (Click here for a link to DSH hospitals in NC). States receive an annual DSH allotment to cover the costs of DSH hospitals that provide care to low-income patients that are not paid by other payors, such as Medicare and Medicaid. For example, in fiscal year 2011, North Carolina received $295,314,187.00 in DSH allotments. Almost 300 billion in allotments would make any hospital less reluctant to treat the uninsured.
Think of DSH this way, in North Carolina, according to a recent article in the News and Observer, we have approximately 1.5 million uninsured in NC, roughly 1 out of every 5 NC residents. When a person without health insurance gets sick, they cannot go to the doctor (since they do not have doctor because of not having insurance). Instead, the uninsured are forced to go to the emergency room.
Now think of hospitals as a business, which is what they are. We all would like to think that hospitals are there for everyone. That everyone is welcome in a hospital. (At least, I would like to think that). However, the reality is that hospitals are a business. Each procedure, each test, each exam costs a certain amount of money. If the person receiving the service cannot pay, what incentive does a hospital have to continue to service the person?
Well, there ARE federal requirements to treat. For example, under the Emergency Medical Treatment and Labor Act (EMTALA), part of the 1985 Consolidated Omnibus Reconciliation Act (COBRA), a hospital cannot turn away or unnecessarily discharge any uninsured person with an emergency condition. Anyone who shows up in a hospital emergency room will be screened to determine the severity of his or her condition. If the condition is deemed an emergency, the hospital is obligated to stabilize the patient. But for non-emergency conditions, what incentives do hospitals have to continue treatment for non-emergency condition? Hence, the DSH payments.
Going back to CMS’ proposed DSH reductions, the thought process behind these aggregate reductions is (in my opinion): Because of Medicaid expansion under the Affordable Care Act (ACA), more people with be insured by Medicaid and less uninsured people will be admitting themselves into ERs. In other words, if a state opted to expand Medicaid, then, supposedly, more people are insured; thus the hospitals need less DSH.
But what about the states that did not opt to expand Medicaid (i.e., North Carolina)?
CMS’ proposal sets forth 5 factors to determine each state’s DSH allotments. Whether the state expanded Medicaid will be considered. The proposal states, in pertinent part:
“Consequently, hospitals in states implementing the new coverage group [Medicaid expansion] that serve Medicaid patients may experience a deeper reduction in DSH payments than they would if all states were to implement the new coverage group.”
Here are the official statutory factors:
The proposal also provides an illustrative chart of potential reductions. Here’s the warning: “Table 1 and the values contained therein are provided only for purposes of illustrating the application of the DHRM and the associated DSH reduction factors described in this proposed rule to determine each states’ DSH allotment reduction for FY 2014. Note that these values do not represent the final DSH reduction amounts for FY 2014.”
Here’s the illustrative chart: (which can also be found here since the below picture is so small…or I need new contacts)
So how much will North Carolina hospitals’ DSH allotments go down under this CMS proposal?
According to the Kaiser Foundation, North Carolina’s hospitals’ DSH payments will be reduced by $500 million in FY 2014, $600 million in FYs 2015-2016, $1.8 billion in FY 2017, $5 billion in FY2018, $5.6 billion in FY2019, and $4 billion in FY 2020.
Hospitals Treat Less Uninsured: It is only logical that if a hospital will no longer be allotted as much money to treat uninsured patients, the hospitals will want to treat less uninsured. One possible way a hospital could legally limit the number of uninsured is to determine less conditions as an “emergency condition.” Obviously, what constitutes an “emergency condition” has some subjective wiggle-room.
Less Hospitals Opt to be DSH Hospitals: If the amount of money is so greatly reduced so as NOT to provide an incentive for a hospital to treat uninsured, some hospitals may opt to not meet the standard of a DSH hospital.
More Transfers for the Uninsured: If hospitals are not receiving the incentive to treat uninsured, hospitals may transfer the uninsured patients to other hospitals in instances in which the hospital would not transfer an insured patient.
You can provide your comments to CMS regarding this proposed DSH reduction.
Send comments to: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-2367-P, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850
Emergency rooms and jails are our mental health care providers for Medicaid recipients?
My best friend is an ER trauma nurse. She told me that a majority of patients are mentally ill. One man came in to the ER, screaming at the top of his lungs, “Get me my lilly pad!” Apparently he believed that he was a frog. While you may smile at the humorous notion of the lilly pad man, it is a sad tribute to the state of mental illness in North Carolina. Why was he not getting the care he needed?
And here I thought mental health care was so important. In light of recent events, I would venture to say that mental health is quickly becoming our nation’s most pressing issue.
First let me say, Boston…so tragic. My prayers are with all families affected by the bombing.
So you would think with all the hoopla in the aftermath of the Boston bombing and other serious heinous acts (Connecticut) that our mental health system would be top priority.
Is there a correlation between poor mental health systems and violent crime? Yes.
Here are some studies:
What about North Carolina? Where are our mentally ill? In jails? Hospitalized? Or receiving quality mental health care.
The study “More Mentally Ill Persons are in Jails and Prisons…” states, “Using 2004–2005 data not previously published, we found that in the United States there are now more than three times more seriously mentally ill persons in jails and prisons than in hospitals. Looked at by individual states, in North Dakota there are approximately an equal number of mentally ill persons in jails and prisons compared to hospitals. By contrast, Arizona and Nevada have almost ten times more mentally ill persons in jails and prisons than in hospitals. It is thus fact, not hyperbole, that America’s jails and prisons have become our new mental hospitals.”
Having a strong, competent, and easily accessible system to serve those people suffering from mental illness is key to so many things you would want in a society: (1) those suffering from mental illnesses would receive the quality health care so needed; (2) there would be less homeless; (3) there would be less violence (see above-referenced studies).
Now, since this is a Medicaid blog, I will obviously concentrate on the Medicaid population.
So what is North Carolina doing regarding the mental health system for Medicaid recipients?
With the implementation of the Managed Care Organizations (MCOs), the hiring of Recovery Audit Contractors (RACs) and the utter lack of supervision by the Division of Medical Assistance (DMA), the Medicaid mental health system is spiraling downward.
Medicaid recipients are not receiving the care needed because of the state’s, MCOs’ and RACs’ treatment of health care providers willing to accept Medicaid.
Here are some serious and real-life examples:
1. The MCOs are denying authorizations for more expensive mental health services.
In a certain county, a certain MCO is denying all ACTT services, stating the Medicaid recipients do not meet eligibility requirements. ACTT, or Assertive Community Treatment Team services. ACTT is a 24-hour, 7 day/week service for the seriously mentally ill. Since the MCO denied ACTT services in this certain county, despite medical necessity, 2 discharged ACTT recipients have committed crimes and become incarcerated. One discharged recipient attempted suicide. Two in jail; one in a hospital. Thank you, new mental health care providers.
2. The RACs are causing quality health care providers who have never committed fraud to have their Medicaid contracts terminated based on paperwork nit-picking and causing Medicaid recipients to lose their provider.
One such provider serves teen-age boys suffering mental illnesses with violent tendencies. With its Medicaid contract terminated and the inability to pay its staff, those boys may soon be homeless and on their own. The consequences could be catastrophic. Jails and hospitals, I am sure.
What is DMA doing about the MCOs denying medically necessary services and the RACs terminating health care providers needlessly and erroneously?
DMA states that MCOs and RACs are independent contractors; therefore, DMA cannot supervise the MCOs and RACs. I say, “Hog-wash.” DMA cannot divorce itself the duties of managing Medicaid.
But, regardless, stop pointing fingers. Who cares if its DMA’s fault that the teenage boys receiving residential Medicaid services will be homeless because the RACs erroneously and without due process terminated the provider’s contract? Just fix it. Period.
Stop the jails and emergency rooms from becoming North Carolina’s mental health care providers!
Managed Care Organizations (MCOs) are agents of the Department of Health and Human Services (DHHS), Division of Medical Assistance (DMA). When an MCO manages the Medicaid system, the MCO, in essence, steps into the shoes of DMA.
As most of you know, I’ve been saying this for months. I was starting to worry my agency argument was falling on deaf ears. Then, lo, and behold, it turns out that an Administrative Law Judge agrees with me!!! Not only does he agree with me, but he drafts a beautiful, well-written, heavily-laden-with-legal-backing, butt-kicking, rock solid Order!!!! The Order makes me want to draft the following letter to MCOs:
You are agents of the State. Start acting like it.
But, read the Order yourself. What do you think?
There is a waiting list for the Innovations Waiver. I don’t know about you, but when I go to the grocery store and I am in line to check out, if someone butts in front of me without my permission (because they have one item) I call that “cutting in line.” Apparently “cutting in line” is allowed in the Innovations Waiver.
The North Carolina Medicaid Innovations Waiver 1915 (b)/(c) Medicaid Waiver for MH/DD/SA Services supposedly set in place to serve those Medicaid recipients suffering from mental health, substance abuse, and developmental disabilities (MH/DD/SA).
Basically, if you are a woman in NC and have the possibility of having a baby, go ahead and apply for the NC Innovations Waiver at age 15. Since there is a 7-10 year waiting period, if you happen to give birth to a developmentally disabled child within 7-10 years, then your child will be covered by the Innovations Waiver.
On the other side, if you do not apply pre-pregnancy, your developmentally disabled child will be 7-10 BEFORE the child would be covered by the Innovations Waiver.
On CNN today, I heard that treatment for an autistic child runs approximately $80,000/year. That number is astronomical. If I made millions, MAYBE, $80,000 would be nothing to me. But let’s be realistic. How are these families with autistic children paying $80,000/year for health services? I know for a fact, I would not be able to fund that amount.
So, what if you have a “moderately” autistic child with limited funds? You would think that if you place your child on the Innovations Waiver at age 0, that your child would receive Waiver services within 7-10 years, according to the “wait list,” right?
Wrong. The Innovations Waiver waiting period is not based on date. As in if you file your application in 2001 and another person files in 2005, the 2005 applicant may be bumped above you depending on subjective ideas on what determines “moderate” or “severe.”
Let someone intricately involved with the waiver explain:
A wonderful woman with an adult, mentally-handicapped child emailed the following to me:
“I was quite surprised to learn that the Registry of Unmet Needs (waiting list) for the NC Innovations 1915(c) waiver is NOT a date based, first come/first served, list by each of the 11 LME/MCO’s. It is a date based listed by each and every one of the 100 NC Counties. I learned this at the SMC (Smoky) Board of Directors meeting last Thursday (3/28/2013.)
If you are FIRST ON THE LIST in a County that is “over-served” based on “per capita” allocation of waiver slots, then you will not get one of the slots that were just allocated to your LME/MCO.
Think about that. Here in Alexander County or Caldwell County a lot of people (that is who the “per capita” is: people) have lost jobs and moved away. Those of us with slots, didn’t move. It now looks as if Alexander County and/or Caldwell County are over-served! And, think about this, those of us with slots CANNOT move because the slot belongs to the LME/MCO and not the person.
I will never understand how people with power can make such hateful decisions. Who would have decided 100 lists is the correct way to get services to IDD people who are waiting for those services and who are eligible for “institutional level of care?” I am begging you all to be the “truth speaking to power.” I have argued repeatedly that the only list that should exist is a statewide list that is date based WITH exceptions for URGENT severe needs or emergencies.
Truth Speaking to Power: Call the Governor! Constituent Services: 919.733.5811. I called. I said: “I have an urgent Medicaid issue I would like to make the Governor aware of.” I explained the problem with 100 lists. I asked the Governor to find out who the actual live human being was that made such a hateful, mean spirited decision. I asked for an opportunity to speak with the Governor. I also explained that I was going to send an email and I hoped other people would call, too.”
A client came to me, we will call him John, and explained that his company X had been placed on prepayment review by the Carolinas Center of Medical Excellence (CCME) 6 months prior. Like every other health care provider that is placed on prepayment review, he thought… “That’s fine. My documents comply with all applicable Medicaid rules and regulations….This will be easy greasey.”
6 months later, he is sitting in my office with a Notice of Termination of Company X’s Medicaid contract.
CCME had audited Company X’s Outpatient Behavorial Therapy (OBT) services, found the documentation noncompliant and terminated the Medicaid contract.
Problem is, Company X does not only provide OBT. Company X runs residential services for children and adults (mostly adolescents) with severe mental illnesses. Meaning, Company X provides these children and adults with a home, 24-hour care, food, essentials, and therapy.
The residential services were not found out of compliance. Only the OBT. I asked John what the percentage of OBT services Company X providers compared to the residential, and he said that OBT was a very small percentage. OBT is the daytime therapy for the all the residents of Company X.
I asked him what would happen if the Notice of Termination of Medicaid contract went into effect.
“I would have to close my doors.”
Me: “What would happen to your clients?”
“Some would go back to the families that couldn’t care for them initially. Others, I don’t know. All the residential providers that I know of around us have gone under for whatever reason.”
Me: (In shock): “They would be homeless?”
Folks, do not freak out yet. We have filed a Temporary Restraining Order (TRO) and Preliminary Injunction against the Department of Health and Human Services (DHHS) disallowing DHHS from terminating the Medicaid contract of Company X until a full hearing can be heard. The TRO was granted. Our hearing to plead our case for the Preliminary Injunction is tomorrow.
Will keep you posted.
During opening arguments during a recent Injunction Hearing against NC Department of Health and Human Services (DHHS), opposing counsel argued that the NC Medicaid contract is terminable at will.
Meaning, if DHHS felt the desire, it could terminate, for whatever reason, every single health care provider accepting Medicaid from the Medicaid contract except one. And allow one provider to be the Medicaid service monopoly, (I know, drastic example, but if the Medicaid contract is truly terminable at will, the example is plausible), none of the terminated providers could appeal, and, even worse, none of the Medicaid recipients all of a sudden discharged by their providers would have any recourse.
I felt obliged to research.
According to 10A NCAC 22F.0605, “All provider contracts with the North Carolina State Medicaid Agency are terminable at will. Nothing in these Regulations creates in the provider a property right or liberty right in continued participation in the Medicaid program.”
Snap! Very harsh!
Yet I did not stop at this NC Code. Sometimes, not all the time, but sometimes, states do not always enact Codes that follow federal law. So I continued.
According to the History Note of 10A NCAC 22F.0605, the aforementioned Code is based on authority from 42 CFR Part 455. Hmmmm…Federal law.
The Medicaid agency must have—
(a) Methods and criteria for identifying suspected fraud cases;
(b) Methods for investigating these cases that—
(1) Do not infringe on the legal rights of persons involved; and
(2) Afford due process of law; and
(c) Procedures, developed in cooperation with State legal authorities, for referring suspected fraud cases to law enforcement officials.
The phrases that should have jumped out to you are “infringe on the legal rights,” and “due process.” These phrases should have jumped out at you, despite the fact that I italicized them.
But, but, but…. the NC Code specifically stated that providers do not have a property right or liberty right in participation with the Medicaid program!!
Folks, let me tell you a secret. When state law flies in the face of federal law, federal law wins. Why? Ask our Founding Fathers.
Article VI of the U.S. Constitution states, in pertinent part:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Notwithstanding 42 CFR Part 455.13’s language, Part 455.106 explains certain circumstances in which the Medicaid agency MAY terminate a provider, such as nondisclosure of conviction of a criminal offense. The fact that 42 CFR Part 455 times in which the Medicaid agency MAY terminate providers inherently indicates that the Medicaid contracts are not terminable at will.
Of course, in order to legally determine whether 10A NCAC 22F.0605 violates federal law, someone would need to bring a lawsuit, or declaratory judgment.
But, until that occurs, I think I have a great argument that the termination of a providers’ Medicaid contract, without a hearing, does constitute a taking without due process.