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).
“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.”
At a preliminary injunction hearing today, I realized that NC Division of Medical Assistance (DMA), like the Titanic, has difficulty changing its course.
It is my contention (and, I argue, the 4th Circuit’s position, as well) that a Managed Care Organization (MCO) does not have the authority, without DMA’s express authorization, to terminate, suspend or refuse to contract with any provider. PERIOD. I don’t care if the provider has phantom clients and is billing Medicaid 34/hr/day. (People, I am obviously against Medicaid fraud. I am trying to make a point).
An MCO cannot, without express authorization from DMA, terminate, suspend, or refuse to contract with any provider.
Why do I think this? (besides the fact that this is a better position for my clients). And why do I think DMA is Titanic-like?
On or about May 10, 2013, the 4th Circuit published K.C. v. Shipman (“Shipman”). The second sentence of Shipman says it all, “PBH [the MCO at-issue in this particular case], a local subdivision of the state that manages the delivery of plaintiffs’ Medicaid services pursuant to a contract with NCDHHS.” Hmmmm…too legalese-like?
FYI: NCDHHS = NC Dept. of Health and Human Services (DHHS), which is the state agency that manages DMA, which is the division that manages Medicaid. For a complete list of DHHS’ divisions, click here.
Shipman goes on to say, “states should enjoy both an administrative benefit (the ability to designate a single state agency to make final decisions in the interest of efficiency) but also a corresponding burden (an accountability regime in which an agency cannot evade federal requirements by deferring to the actions of other entities).” (emphasis added). Accountability, People!!! That’s what I am talking about!
In other words, DMA, as the single state entity, cannot contract with a third-party and NOT carry the burden of supervising that third-party and insuring that the third-party follows federal law. Or even simpler, the single state entity cannot contract out of (or divorce itself from) federal laws and hide behind a contract. Or even simpler, a teacher at a school cannot suspend a student without the authorization of the principal/school.
Yet, despite Shipman, MCOs are still contending that, “DMA cannot tell us what to do.”
Yet, despite Shipman, MCOs are still terminating, suspending and refusing to contract with providers without the express authority of DMA.
Yet, despite Shipman, TODAY, in my preliminary injunction hearing (the transcript of which will be a public record), the MCO’s attorney argued that (per case law from 1941) the MCO is an independent contractor (hence DMA having no control over the MCO). The DMA attorney piggy-backed the MCO argument and pointed out that DMA had taken no action in this case (i.e., the provider’s Medicaid contract was NOT terminated according to DMA). In other words, the teacher tried to expel a student from school without the school/principal authorizing the expulsion…or even backing it up.
It is as if Shipman came out May 10, 2013, and, here on now May 28, DMA (or its agents the MCOs) is struggling to change its course. But, like the Titanic, DMA is too big, too heavy and too dinosaur-ish to move quickly adapt or change to comply with new federal law (although, even prior to Shipman, I argued it is absolutely obvious that an MCO is the agent of the state…it’s just nice to have some “auth-or-i-TIE” to back my argument).
At the moment that someone yelled, “Iceberg,” what did the Titanic do?
1. Some say the officer in charge had a 30 second delay in giving the order to change the ship’s course after the spotting of the iceberg. Apparently, he was dumbfounded for 30 seconds. Can’t say I blame him. Pretty scary stuff! But, some say, that 30 second delay sunk the Titanic.
2. Some say when the iceberg was spotted, the steersman, Robert Hitchins, went into a panic and turned the Titanic the wrong way. Remember, the Titanic was launched back when sailors were more used to sailing ships. They learned on “Tiller Orders.” If you want to go one way, you push the tiller the other way. So it is not surprising that, in a panic, Hitchins would have resorted to Tillers Orders.
3. Some say the Titanic sank because it was the largest ship afloat. The Titanic was only the second of three Olympic class ocean liners operated by White Star Line. It carried 2,224 passengers. Because of the Titanic’s massive size, the hull plates buckled inward along her starboard side and opened 5 of 16 watertight compartments to the sea.
4. Some say (this has nothing to do with sinking, but with loss of life), the Titanic lacked enough lifeboats. The Titanic had enough lifeboats for 1,178 people, slightly more than 1/2 of the passengers. Supposedly, the reason the Titanic had insufficient lifeboats was because of outdated maritime safety regulations.
Similarly, DMA, like the Titanic, has made some “sink-able” errors, but with administration committed to change, let’s hope we can correct the “sink-able” errors before the Medicaid behavioral health system sinks. Because, instead of 2,224 passengers, Medicaid carries 1.5 million passengers.
Let’s review the Titanic-like errors of DMA. For the sake of this blog, the “Iceberg!” moment was the publication of K.C. v. Shipman.
1. K.C. v. Shipman was published May 10, 2013. It is now May 28, and DMA and the MCOs are still arguing in court that MCOs are not agents of DMA. An 18 day delay is a bit more than a 30 second delay, but the similarity is there nonetheless.
2. A panicked turn the wrong way…Shipman came out and legal advocates for DMA and the MCOs instantly begin to argue, “Yeah, but…” Yeah, but Shipman does not apply to providers…Yeah, but Shipman only applies to managed care, not fee-for-services…Yeah, but just because PBH is an agent of the state, it does not mean that all MCOS are agents. Folks, an agent is an agent is an agent. A panicked turn the wrong way is merely a way of denial (and I am not talking about the river De-Nile). And, some say, the panicked turn the wrong way sunk the Titanic.
3. Largest ship afloat; large bureaucratic agency. I do not have the data, but I am willing to bet that DHHS/DMA is one of the biggest NC governmental agencies. In January, the State Auditor released a Medicaid audit. According to the January audit, “[i]n SFY 2011, North Carolina Medicaid incurred administrative expenses of approximately $648.8 million which when compared to MAP spending of $10.3 billion produced an ADM/MAP percentage of 6.3 percent. This percentage was significantly greater than the ratio for states with comparable spending.” With that much spending on administration, the agency can’t be small! Like the Titanic, big things are hard to maneuver or change course. The hull plates begin to buckle. Imagine an elephant going through an obstacle course at top speed…it just isn’t pretty.
4. Like too few lifeboats, Medicaid’s mental health system has too few providers and too many wanting for a seat on the lifeboat. Not to mention, the MCOs seem to have taken it upon themselves to insure there are too few providers by terminating Medicaid contracts, suspending Medicaid contracts and refusing to enroll providers. Today, my client informed me (and, folks, this is not verified; it is hearsay) that during the time in which this provider’s certain Medicaid contracts were terminated by this one MCO, that this one MCO also terminated 27 other providers’ Medicaid contracts. It’s as if, prior to setting sail, a person brought the captain an extra few thousand lifeboats, and, instead of putting the lifeboats on the ship, the captain said, “No thanks. We don’t have room.” But as to Medicaid behavioral health, we have too many in need and not enough providers providing services. (Again, this does not go to the reason of the sink-age (I know that is not a word) of the Titanic, but rather to the number of deaths/recipients not receiving medically necessary mental health services.
In sum, today I decided that DMA is like the Titanic. So big that both were/are very difficult to change its course. Since Shipman, DMA has had an 18 day delay digesting the decision (and counting). Since Shipman, DMA has panicked and turned the wrong way. Since Shipman, DMA has shown it is just too big to move quickly (and it’s hulls may be buckling). Since Shipman, DMA has proven too little providers and too many Medicaid recipients in-need is not a healthy combination.
Remember the saying, “[T]hose that do not learn from history are doomed to repeat it?”
People, the Titanic sank!
Remember my post on March 14, 2013, stating that NCGS 108C-7 violates federal law? Well, obviously I wrote that blog without pursuing a legal case and without having a judge decide whether NCGS 108C-7 actually violates federal law.
But there may be some validity to my claim that 108C-7 violates federal law.
Yesterday the Supreme Court of the United States wrote an opinion regarding another North Carolina Medicaid statute: NCGS 108A-57. Wos v. E.M.A. In Wos v. E.M.A., the Supreme Court held that the NC Medicaid statute 108A-57 is pre-empted by the Supremacy Clause in the Constitution.
By way of background, the case originated from a mom and dad bringing a medical malpractice claim against the doctor and hospital that delivered their child, E.M.A. E.M.A. suffered multiple serious injuries during birth, leaving her deaf, blind, and unable to sit, walk, crawl, or talk. She also suffers mental retardation and seizures. Due to these birth injuries, Medicaid paid $1.9 in hospital costs, surgeries and health care on behave of E.M.A. In November 2006, the NC Court approved a settlement for $2.8 million. If you think that the settlement seems low, it is low. Apparently the settlement was based on the amount of malpractice insurance the defendants possessed.
A representative from Medicaid (DMA) informed the parents that Medicaid would seek reimbursement for the $1.9 million expended.
“E. M. A. and her parents then filed this action under Rev. Stat. §1979, 42 U. S. C. §1983, in the United States District Court for the Western District of North Carolina. They sought declaratory and injunctive relief, arguing that the State’s reimbursement scheme violated the Medicaid anti-lien provision, §1396p(a)(1) .”
After appeal after appeal and all the way up to the U.S. Supreme Court, North Carolina fought E.M.A. and her parents, saying that the State was entitled to Medicaid reimbursement as required under NCGS 108A-57.
The U.S. Supreme Court disagreed .
In the words of the Supreme Court (as to why the NC Statute was pre-empted):
“Instead, North Carolina has picked an arbitrary number—one-third—and by statutory command labeled that portion of a beneficiary’s tort recovery as representing payment for medical care. Pre-emption is not a matter of semantics. A State may not evade the pre-emptive force of federal law by resorting to creative statutory interpretation or description at odds with the statute’s intended operation and effect. ”
Interesting that the Supreme Court picked the word “arbitrary.”
In light of the Wos v. E.M.A. decision, I think it would be prudent to question other Medicaid statutes. Most likely other Medicaid statutes, similarly, violate federal law. Maybe…..108C-7.
See my March 14, 2013, blog for my legal reasons that 108C-7 violates federal law.