Category Archives: Medicaid contracts
Lately, I have heard the phrase NOT “in good standing” with DMA too often. Whenever I hear not “in good standing,” I have this image of the movie “Fred Clause.” Remember when Vince Vaughn, who is playing Santa’s younger brother, is asked to stamp the children’s Christmas list with “naughty” or “nice?” At first, he stamps the lists correctly…or per Santa’s orders. Then Fred Clause gets angry and stamps every Christmas list “Nice.” Well, being NOT “in good standing” with DMA is like being on the “naughty” list for Santa Clause, especially when Santa, as in the movie “Fred Clause,” contracts out Santa’s very important job to a third-party, Fred Clause, who begins to determine “naughty” and “nice” completely arbitrarily and without due consideration to the individual child’s facts or circumstances.
If you are reading this and thinking….”NOT “in good standing?”…I’ve never heard of such a thing….,” then take a moment, think about all the ways you are blessed (BTW: not knowing what “not in good standing” is one of those blessings). Take a moment and pat yourself and your team/staff on the back.
If you are reading this and thinking… “Yeah!…What the heck is NOT “in good standing?”…is there such a thing…is this legal?” Then this blog is for you.
What IS not “in good standing?”
Well, we know the consequences are drastic. If you are found to be “not in good standing,” the MCOs refuse to contract with you or terminate an already existing Medicaid contract. DMA terminates your Medicaid contract. You are not reimbursed for Medicaid services rendered. In drastic cases, you are forced to close your business. Go bankrupt. Fire all staff. And never service Medicaid recipients again.
And for all those above-referenced consequences…all because “You are not in good standing with DMA.” What???? What is “not in good standing with DMA?” Is that like getting an ‘F’ in drafting PCPs? Or a ‘C’ in treatment plans? Maybe a B- in service notes?
What IS “in good standing?”
According to the Division of Medical Assistance (DMA) website, “[t]he N.C. Medicaid Program recognizes the need to promote access to care by enrolling all providers in a timely manner and is committed to ensuring the provision of quality care for our citizens. The enrollment process includes credentialing, endorsement, and licensure verification to ensure that all providers are in good standing in the community.” (emphasis added).
To me, “good standing in the community” means: (1) not committing criminal acts; (2) maybe..being a good neighbor; (3) charitable services; (4) not littering; (5) helping stray animals get back to their owners…
But, obviously, “in good standing” means something completely different to DMA. So, I looked for a definition. And looked. I found the July 2012 Medicaid Bulletin that states:
Clarification of the Division of Health Service Regulation Good Standing Status
The N.C. Division of Health Service Regulation (DHSR) has provided clarification on its definition of good standing status. Effectively immediately, DHSR good standing status is associated with a facility – not an entire agency or an individual associated with an agency or facility. DHSR determines whether facility is in good standing based on current and active administrative actions against the facility.
Actions included in the determination that a facility is not in Good Standing include:
- Active Type A or Imposed Type B, based on Provider Penalty Tracking Database [criteria in NCGS 122C-23(e1) – non-compliance in Article 3, Client Rights].
- Current Intent to Revoke – Intent to Revoke is active and has not been rescinded.
- Active Suspension of Admissions – Suspension of Admissions has not been lifted
- Active Summary Suspension – Summary Suspension was issued and has not been lifted.
- Active Notice of Revocation – Notice of Revocation is current, and may be in appeal.
- Revocation in Effect – Notice of Revocation was issued and the final outcome is that the license for this facility has been revoked and is no longer active.
Local Management Entities-Managed Care Organizations (LME-MCOS) will receive a Good Standing Notice to help determine which agencies under the 1915 b/c waiver have received a determination of good standing from the DHSR. If a facility is not in good standing, LME-MCOs can withhold a decision about whether to contract with the specific facility for 90 days. During this 90-day period, LME-MCOs can check back with DHSR to determine if any resolution or changes to the action have occurred prior to making a final decision.
I also found an actual definition in DMA’s Endorsement Policy (from back in April 2011):
(11) “Good Standing – DHHS” means the same as defined in 10A NCAC 22P.0402.
(12) “Good Standing – LME” means the provider has a history of compliance with DMA Clinical Policy specific to service delivery and does not have an open Plan Of Correction (POC) with the LME. A POC must be timely submitted, approved, and implemented before the POC action can be closed. A POC is fully implemented when the POC is being followed and all out of compliance findings have been minimized or eliminated as determined by the LME in a maximum of two follow-up reviews. The POC action is closed when the provider receives the official notification from the LME stating the action is closed.
Ok, so the definitions helped…a little.
So I went to 10A NCAC 22P.0402 (which can be found below, courtesy of Benchmarks):
10A NCAC 22P .0402 GOOD STANDING AND CONFLICTS OF INTEREST
(a) A provider is in good standing with the Division of Medical Assistance when all of the following conditions are met, regardless of any appeal filed by the provider or any stay of such action entered by the Office of Administrative Hearings:
(1) The provider or any entities which share the same Employee Identification Number (EIN) as the provider do not owe any outstanding (more than 30 days past due) accounts receivable to DMA or its designee, including Medicaid overpayments, recoupments, program reimbursements, cost settlements, cost assessments, penalties and interest. A provider that entered into an approved payment plan in accordance with Subchapter 22F and Chapter 108C of the North Carolina General Statutes is considered to be in good standing if the provider has not defaulted on the payment plan;
(2) The provider or any entities which share the same Employee Identification Number (EIN) as the provider have not been terminated, suspended, had its Medicaid payments withheld, or been placed on probation in the previous 12 month period;
(3) The provider or any entities which share the same Employee Identification Number (EIN) as the provider is not undergoing prepayment claims review;
(4) The owner(s) or managing employee(s) of the provider agency were not previously the owners or managing employee(s) of a provider agency which had its participation in the N.C. Medicaid program involuntarily terminated for any reason or owes an outstanding accounts receivable to DMA or its designee, irrespective of whether the provider agency is currently enrolled in the N.C. Medicaid program;
(5) The provider and its owners and managing employee(s) are not listed on the U.S. Health and Human Services Office of Inspector General Exclusion list;
(6) The provider, any entities which share the same Employee Identification Number (EIN) as the provider, or its corporate parent, have no unresolved tax or payroll liabilities owed to the U.S. or North Carolina Department of Revenue;
(7) The provider and its owner(s) or managing employee(s) or any entity sharing the same EIN as the provider have no unresolved payroll liabilities owed to the U.S. or North Carolina Department of Labor. Unresolved payroll liabilities owed to the N.C. Department of Labor is defined as:
(A) The provider or its owner(s) or managing employee(s) or any entity sharing the same EIN as the provider having one or more unpaid judgments for wages owed under Chapter 95, Article 2A, the North Carolina Wage & Hour Act, in which the N.C. Department of Labor or Commissioner of Labor is the Plaintiff; or
(B) If one or more of the owner(s) or managing employee(s) of the entity requesting good standing was the owner or managing employee of any other organization against whom the North Carolina Department of Labor has one or more unpaid judgments for wages owed under Chapter 95, Article 2A, the North Carolina Wage & Hour Act, in which the N.C. Department of Labor or Commissioner of Labor is the Plaintiff.
(8) The provider or any entities which share the same Employee Identification Number (EIN) as the provider have not abandoned or destroyed patient medical records or staff records in violation of federal or state law, rule or regulation;
(9) The owner(s) or managing employee(s) of the provider agency were not previously the owners or managing employee(s) of a provider agency which abandoned or destroyed patient medical records or staff records in violation of federal or state law, rule or regulation; and
(10) If incorporated or otherwise applicable, the provider has a current Certificate of Existence issued by the N.C. Secretary of State’s Office.
(b) A provider is in good standing with DMH/DD/SAS when all of the following conditions are met, regardless of any appeal filed by the provider or any stay of such action entered by the Office of Administrative Hearings:
(1) Any approved Plan(s) of Correction (POC) pending with the DMH/DD/SAS Accountability Team has been implemented by the provider and the action has been closed by DMH/DD/SAS. A POC is implemented when the POC is being followed and all out of compliance findings have been minimized or eliminated as determined by a maximum of two DMH/DD/SAS follow-up reviews. The POC action is closed when the provider receives the official notification from the DMH/DD/SAS Accountability Team stating the action is closed; and
(2) The provider has not had any endorsement or credentialing to provide an enhanced or child/adolescent residential treatment service involuntarily withdrawn by any Local Management Entity/Managed Care Organization, and upheld by the DMH/DD/SAS Appeals Panel, in the previous 12 month period.
(c) A provider is in good standing with the Division of Health Service Regulation if it meets the requirements for enrollment and licensure set forth in G.S. 122C-23 (e1), regardless of any appeal filed by the provider or any stay of such action entered by the Office of Administrative Hearings.
(d) The owners, operators, and managing employees of a CABHA may not be employed by, or on the Board of, any Local Management Entity (LME), Prepaid Inpatient Health Plan (PIHP), Managed Care Organization (MCO), accreditation agency, or for-profit hospital.
History Note: Authority G.S. 108A-54; 42 U.S.C. 1396a; 42 C.F.R. 431.51; S.L. 2009-451, Section 10.58(d); Temporary Adoption Eff. December 28, 2010.
Ok, after reading all those definitions, I am sure you understand what NOT “in good standing” means, right? I mean, could it get any clearer?
Let’s break it down. For the sake of simplicity, I will use 10A NCAC 22P.0402, for no other reason except, of all the definitions, this administrative code is actually codified. First of all, 10A NCAC 22P.0402 is a bit confusing from the onset, as the code is drafted with conflicting negatives. As in, a provider is “in good standing” if (a) the provider does NOT owe…. So I’ve tried to make the code a bit easier to read.
1. A provider is NOT “in good standing” if the provider owes any outstanding (more than 30 days past due) accounts receivable to DMA or its designee, including Medicaid overpayments, recoupments, program reimbursements, cost settlements, cost assessments, penalties and interest.
Ok, easy enough…if you owe money to DMA, you are not “in good standing.” However, this is what disturbs me: the beginning of 10A NCAC 22P.0402 states regardless of any ongoing appeal or stay. That language means that if you get a Tentative Notice of Overpayment (TNO) stating that you owe $500,000, but you disagree with the findings and appeal, despite the appeal, you are still NOT “in good standing.”
2. A provider is NOT “in good standing” if “the provider ha[s]  been terminated, suspended, had its Medicaid payments withheld, or been placed on probation in the previous 12 month period.”
Again, easy enough to understand. But, again, I am disturbed by the fact that, according to the Code, even if you disagree with the termination or suspension, during any appeal, you will still be on the “naughty” list.
Allow me to get on my soapbox for a moment (as if you have a choice). You can get placed on prepayment review (for whatever reason), which automatically suspends all Medicaid reimbursements, CCME, or whatever 3rd-party entity can conduct a prepayment review improperly (not in actual accordance with DMA policies), and basically, botch your accuracy ratings to create an impossibility of reaching 70%…[Remember, this whole prepayment review process is not appealable according to NCGS 108C-7, which, I believe, is in direct violation of federal law] and the entire time during which your Medicaid reimbursements are suspended erroneously, you are considered NOT “in good standing,” which, we have already determined, has dire consequences.
My problem with the prepayment review process, in general, is that placing a provider on prepayment review with no due process is an obvious infringement on the legal rights of the persons involved. Federal law does not allow a state to simply not allow a provider appeal rights. On the contrary, federal law makes it very clear in numerous places that an appeal process SHOULD be in place. Yet NC does not allow a provider to appeal prepayment review status.
Because NC does not afford appeal rights for prepayment review, but the entire time a provider is on prepayment review the provider receives zero Medicaid reimbursements and the provider is considered not “in good standing,” both of which have drastic consequences for the provider, NC is, in essence, unilaterally deciding to usurp a provider’s property interest and a U.S. citizen’s right to life, liberty, and the pursuit of happiness without due process.
Yet, the entire time during which the provider is getting Constitutional deprivation to the detriment to the provider, the provider is not “in good standing” with DMA.
The process reminds me of the Don Henley song “Dirty Laundry:”
Kick ‘em when they’re up
Kick ‘em when they’re down
Kick ‘em all around
Not to mention the fact that 42 C.F.R. 455.23 states:
(a) Basis for suspension
(1) The State Medicaid agency must suspend all Medicaid payments to a provider after the agency determines there is a credible allegation of fraud for which an investigation is pending under the Medicaid program against an individual or entity unless the agency has good cause to not suspend payments or to suspend payment only in part; (2) The State Medicaid agency may suspend payments without first notifying the provider of its intention to suspend such payments; (3) A provider may request, and must be granted, administrative review where State law so requires.
Ok, going back to the definition and consequences of not “in good standing.” The third subsection of 10A NCAC 22P.0402 reads:
3. A provider is NOT “in good standing” if “the provider is undergoing prepayment claims review.
4. A provider is NOT “in good standing” if the provider was “involuntarily terminated for any reason or owes an outstanding accounts receivable to DMA or its designee.”
Again, if the provider was involuntarily terminated based on a flawed prepayment review, then see #2. If providers owes money, see #1.
5. A provider is NOT “in good standing” if the provider is NOT listed on the U.S. Health and Human Services Office of Inspector General (OIG) Exclusion list;
OIG has the authority to exclude individuals and entities from Federally funded health care programs. One can only hope that those placed on the exclusion list is rightfully placed on the exclusion list,
6. A provider is NOT “in good standing” if the provider has any unresolved tax or payroll liabilities owed to the U.S. or North Carolina Department of Revenue;
Ok, I get it. The IRS cannot be questioned (despite recent unveilings of misdeeds by the IRS). Death and taxes…
7. A provider is NOT “in good standing” if the provider has any unresolved payroll liabilities owed to the U.S. or North Carolina Department of Labor.
Department of Labor is like the IRS…got it.
8. A provider is NOT “in good standing” if the provider has abandoned or destroyed patient medical records or staff records in violation of federal or state law, rule or regulation;
Do not abandon or destroy records….Check.
9. A provider is NOT “in good standing” if the owner(s) or managing employee(s) of the provider agency were previously the owners or managing employee(s) of a provider agency which abandoned or destroyed patient medical records or staff records in violation of federal or state law, rule or regulation; and
Do not own or manage a provider agency that previously abandoned or destroyed records….Check.
(10) A provider is “in good standing” if the provider, incorporated or otherwise applicable, has a current Certificate of Existence issued by the N.C. Secretary of State’s Office.
So, really, I do not take issue with the ENTIRE definition of what is not “in good standing.” Only subsections 1-4.
Like I said, the entire process reminds me of Vince Vaughn (the 3rd party contractor) angrily stamping all the children’s Christmas lists as “Nice.” Except in the case of being not “in good standing,” Vince Vaughn (the 3rd party contractor) is angrily stamping all the lists as “Naughty.”
How many times have you heard, on TV, the phrase “alleged” suspect? Or the phrase “innocent until proven guilty?” Or “presumed innocent?” In Latin, ei incumbit probatio qui dicit, non qui negat means the burden of proof lies with the one who declares, not who denies.
Most people do not know that this fundamental presumption, innocent until proven guilty (or, presumption of innocence), is not found in our Constitution…at least not explicitly. The presumption of innocence is widely held to come from the 5th, 6th and 14th amendments.
However, in common law, the presumption of innocence has been upheld. In Coffin v. U.S., 156 U.S. 432 (1895), the Supreme Court held that “[t]he principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”
Yes, I understand that, back in 1895, the Supreme Court held the presumption exists in criminal law. Obviously, this is a Medicaid blog and I have averred, and will continue to aver, that my clients are not guilty of any criminal Medicaid fraud. But, even in the civil arena, a similar presumption of innocence exists and, as pertaining to Medicaid audits, is not being followed. The civil audits being conducted on health care providers that accept Medicaid are: post-payment reviews, prepayment reviews, and Recovery Audit Contractor (RAC) audits.
I am defining post-payment reviews as audits that are supposed to be used to assure that payments are made for services delivered to beneficiaries.
I am defining prepayment review as a 6 month audit/review (initially…it can be longer or you can have your Medicaid contract terminated after 6 months) conducted on a provider’s records before reimbursement for services rendered due to “credible allegations of fraud,” “identification of aberrant billing practices, “data analysis,” or “other grounds.”
I am defining a RAC audit as an audit of past claims (up to 3 years ago) by another DMA agent either Public Consulting Group (PCG) or HMS, which determines that, based on its own subjective determination, the providers’ documents are noncompliant and the provider owes the State a monetary amount of $____. The provider receives a Tentative Notice of Overpayment (TNO). It is important to note that these TNO amounts are extrapolated. Which means if the DMA agent finds $1,000 worth of “alleged” overpayments, the agent can extrapolate the amount to be $1 million (This example is merely for the sake of this blog).
Going back to the presumption of innocence in criminal law, as I said, civil law has a similar presumption. It is called the burden of proof. In Latin,”semper necessitas probandi incumbit ei qui agit,” means, in the best translation of what I have found, “the necessity of proof always lies with the person who lays charges.”
Similar to: “The burden lies with the one who declares, not denies?” I think so. In essence, the person that accuses another bears the “burden of proof,” not the accused. But what does that mean? In simple terms, it means that the person who accuses another must prove every element of the crime/tort/wrongdoing in a court of law. If that accuser fails to prove every element, then the accusee (the person accused) does not even have to defend him or herself. Since the burden lies on the accuser, the accuser must prove all elements before the accusee even has to defend him or herself. If the accuser fails, the case is dismissed.
The weight of the “presumption of innocence” and the “burden of proof” resting on the accuser is the heart of our judicial system, both criminal and civil.
So what happens if we take both the presumption and the burden away?
Johnny could tell the NC Bar that Susie, a local lawyer, has committed unethical acts. The NC Bar would immediately either punish Susie, suspend her bar license or terminate her Bar license without the Bar questioning Johnny, Susie, or even give Susie a chance to defend herself.
Tommy could be shopping at his local Harris Teeter, looking for Super Double coupon deals, and a policeman could arrest him for shoplifting without any evidence, except that Ms. Doe, the little old lady that lives next to Tommy and hates his my dog told the policeman that she saw Tommy shoplift.
Or, even worse, a nearby small pet store could call the IRS, contending its competitor down the road has committed tax fraud. IRS, without an investigation, closes the competitor’s shop and forbids any customer to pay it until the full investigation.
How are the above examples any different from these?
You receive a Notice of Prepayment Review. The Review states that “based on credible allegations of fraud” (you do not get to know who accused you), we are suspending all Medicaid reimbursements to you, effective [DATE]. For the next 6 months you have to prove your innocence. You cannot appeal this decision.
Guilty until proven innocent.
Or: You receive a Tentative Notice of Overpayment (TNO) that, based on a review of 10 clients, you owe $500,000 (extrapolated), and the provider has 15 days in which to send the funds. BTW: you can appeal. But the decision has already been made that you owe the money without hearing your defense.
Guilty until proven innocent.
Or, even better, you have been, for months, trying your hardest to keep up with all the over-inclusive records requests from the Carolinas Center of Medical Excellence (CCME), all the final requests, and all the nebulous denials (for reasons other than what was requested in the final requests). You get to a hearing or a mediation and discover that, if you provide 5 service notes, that you will have passed prepayment review. So you tell CCME that you will get the service notes. And you are told that, most likely, the service notes will be considered invalid, because you will, most likely, re-created the notes, since you didn’t provide the notes earlier.
Hmmmm…How does one prove that is service note is NOT fraudulent?
Guilty until proven innocent.
“It is better to save a guilty man than condemn an innocent one.” Voltaire
For those of you who have been on prepayment review or know someone else who has undergone prepayment review, this is for you.
Remember “A MidSummer’s Night Dream,” by William Shakespeare? The comedy of errors? Undergoing a Medicaid audit performed by the Carolinas Center of Medical Excellence (CCME) is much like the comedy of errors in “The MidSummer’s Night Dream.” (MSND) And much like the events in MSND, everyone involved wants to believe that the audit was just a dream/nightmare, but, sadly, this is real life.
For those of you that were not forced to read MSND in school or did not study Shakespeare in college, MSND portrays the events surrounding the marriage of the Duke of Athens, Theseus, and Hippolyta. These include the adventures of four young Athenian lovers and a group of six amateur actors, who are controlled and manipulated by the fairies who inhabit the forest in which most of the play is set. In my humble opinion, the best characters in MSND is Titania and Puck. Titania is the Queen of the fairies, who is estranged from her husband Oberon because Titania will not give her “changeling” to her husband. Oberon wants the “changeling” to use in battle, but Titania will not have it. Puck is the court jester, who creates a magic flower that, if struck on a person with Cupid’s arrow, will make the struck-person fall in love with whomever or whatever is first seen upon awakening.
So Oberon devises a plan to use the magic flower on Titania and, while she is awe-struck with whatever or whomever she loves, Oberon will take the “changeling.” Puck strikes Titania with the flower, using Cupid’s arrow, and she is fast asleep.
Meanwhile a group of people are creating a play. Nick Bottom, whose name Puck decides is another word for “jackass,” is one of the actors. While Bottom is rehearsing, Puck transforms Bottom’s head into a jackass’ head. Bottom has no idea and goes about his rehearsal with an ass head.
Titania wakes up, sees the ass-headed Bottom, and falls in love. While she is in love with the ass-headed Bottom, Oberon takes the changeling.
In CCME’s very own comedy of errors, CCME conducts prepayment reviews for the Division of Medical Assistance (DMA). But in this comedy of errors, the provider (Titania) has its Medicaid contract (changeling) that DMA (Oberon) wants. DMA (Oberon) sends CCME (Puck) to conduct a prepayment review (the magic flower) to get the Medicaid contract. The provider (Titania) becomes so confused and so frustrated with the process that, when she wakes up from the nightmare of prepayment review, she feels like an ass and has no Medicaid contract (changeling).
Here is CCME’s Comedy of Errors:
On August 6, 2012, Jane Doe receives her notice of prepayment review from CCME. Jane also receives CCME’s first requests for documents for Medicaid recipients for certain dates of services (DOS). In actuality, CCME requests hundreds of documents for multiple Medicaid recipients and multiple DOS, and, of course, Jane is given 15 days in which to comply. But, for the sake of this blog and simplicity, we are going to concentrate on one Medicaid recipient and 3 DOS.
On October 10, 2012, Jane receives a request for documents for Medicaid recipient X for DOS 9/20/12, 9/24/12, and 9/27/12.
Jane complies. She sends all the documents required to CCME. Remember, since August, Jane has not received any reimbursements for Medicaid, but Jane is expected to continue to service her clients, pay her staff, pay herself, and pay all overhead for her office without getting paid. I wonder how many other professions would put up with continuing to work without payment. I expect that if I went to the grocery store, put a bunch of food in my cart, and tell the cashier that I am not paying until the state government performed an audit of the quality of its food, that I would be arrested for shoplifting.
In November, Jane receives a “Final Document Request” for Medicaid recipient X and DOS 9/20, 9/24, and 9/27.
The only item CCME requests in the signature log of Jane’s staff for all 3 DOS. So, she sends in the signature log. Implicit in the Final Document Request is that, since CCME only requested a signature log, that CCME had all other necessary and required documents for these DOS.
In December (remember Jane still had not received any Medicaid payments since August), Jane receives a denial for DOS 9/20, 9/24, and 9/27. A denial means Jane does not get paid. According to the denial, DOS 9/20, 9/24, and 9/27 were denied because CCME did not have a treatment plan, signed authorization by the Medicaid recipient, or the service note. What????
1. Jane sent the treatment plan, the signed consent, and the service note back in October.
2. The Final Document Request only asked for the signature log. Why didn’t the Final Request request the treatment plan, signed consent, and service note?
The comedy of errors continue.
In January 2013, CCME sends another Request for Documents. Included in the list of required documents to be sent to CCME are documents for Medicaid recipient X for DOS 9/20, 9/24, and 9/27.
Jane thinks this is odd, but who is she to question the Medicaid auditor? Plus, if she calls CCME to point out the repetitive nature of the audit, she is just told to comply with the audit.
So she does. She re-sends all the required documents again.
A week later, she receives another request for DOS 9/27 for the same Medicaid recipient. She re-re-sends the documents.
In February, she receives denials for DOS 9/20, 9/24, and 9/27. A week later she receives the third denial for DOS 9/27.
A few days later, after calling CCME, getting transferred to 40 different people, and her repeated request for a copy of her compliance accuracy rate, CCME sends her accuracy rate to her. CCME determined that Jane’s accuracy rate is 1.25% (you have to get over 70% for 3 consecutive months to pass prepayment review). DMA terminates her Medicaid contract.
Due to the sequence of events, which I have called the comedy of errors, DMA (Oberon) successfully usurps Jane’s Medicaid contract (the changeling).
I doubt Shakespeare contemplated his “comedy of errors” template would be used in the Medicaid system. And Shakespeare’s version was much funnier.
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!
Have you ever bought a used car only to find out it is a lemon? Or a house only to find it is a money pit? Well, I suspect that sinking feeling is much like how Secretary Aldona Wos feels after inheriting the NC Medicaid system.
There is no question that Secretary Wos inherited a lemon…or, even more apropos,…a Medicaid money pit.
Remember, in the January 2013 Medicaid Audit conducted by State Auditor Beth Wood, the audit found Medicaid to be a total of almost $1.2 billion over budget during the past three fiscal years. (FYI: The Fiscal Year begins July 1 and ends June 30. Hence, the need for a new budget now that this Fiscal Year is fast-ending.) The January Audit concluded that (not this year) but the last 3 years, Medicaid was over budget by a total of almost $1.2 billion. The past 3 Fiscal Years were, obviously, before Secretary Wos’ stent as NC Director of the Department of Health and Human Services (DHHS).
Secretary Wos did not only inherit a “money pit” Medicaid system as it pertains to the budget. Think about how expensive NCTracks is turning out to be. But NCTracks was not Secretary Wos’ “baby.” The past administration implemented the new NCTracks system, which is still not “live.” Originally NCTracks was set to go live August 2011 at a cost of $265 million. When the contract was put out for bid in 2008 (for the second time), Computer Sciences Company (CSC) hired former legislator and DHHS Deputy Secretary Lanier Cansler as its lobbyist. Shortly after CSC landed the contract, Perdue named Cansler as her DHHS secretary. (Hmmmm).
NCTracks now brags the hefty price tag of $484 million and is scheduled to go live July 1, 2013. The project is now the most expensive contract in state history.
A new audit released Wednesday says DHHS failed to fully test NCTracks. According to the N&O, “[o]f 834 “Critical Priority Test Cases” set to be performed on the new system, it failed 123. The audit says 285 of the “critical” tests, more than one quarter, were never performed.”
Now many people are criticizing Secretary Wos for the price tag of NCTracks. But prior to pointing fingers, remember from where NCTracks came. And the $1.2 over budget for the last 3 years.
Now this blog is NOT a “let’s all get to together and applaud the new Secretary; we all think she is the bee’s knees; all our Medicaid questions have been answered.”
I am merely pointing out that inheriting a money pit must be a burden. After only five months or so on the job, Secretary Wos has received much criticism; yet many critiques are aimed at “inherited bads.”
Believe me, the current MCO situation (which, although new and may or may not have been Sect. Wos’ doing…although I tend to think not since PBH has been our pilot for years prior) is as catastrophic for the behavioral health providers as a warm day is to Frosty the Snowman.
But at a recent, town-hall-style meeting in Durham, I asked my tugging question. My tugging question for so long has been, “How is the Department of Health and Human Services (DHHS), Division of Medical Assistance (DMA) supervising the Managed Care Organizations (MCOs)?” Well, I asked the question. (Important legal disclaimer…I did NOT ask this question as an attorney. I asked this question as a quasi-journalist for this blog at a public forum. I was NOT representing any party, only my mere legal curiosity).
Sect. Wos’ answer? “Call me.” (These quotes may not be exact…but very close).
“If you have specific questions for specific providers, call me and I will see what I can do.”
Wow! Really? Someone who will actually listen? Well, I got the phone number of her assistant. A Ricky Diaz.
The next day I realized sadly that IF I DID contact Sect. Wos for a specific provider, that as an attorney, if I spoke to Sect. Wos about a specific provider, that I could be accused of ex parte communications with a represented party. And they would be right. So I was stuck between a rock and a hard place. (We’d all be fine if not for these dag on laws…)
So, here we are, a real possibility that going straight to the top could help my clients, but this legal, ethical dilemma overpowers. So I contacted the AG’s office and asked for a telephone conference with Emery Milliken, the general counsel of DHHS, any AG that would like to be involved, Sect. Wos and me. I also contacted Ricky Diaz and asked to schedule a telephone conference with Sect. Wos, me, and whatever counsel Sect. Wos wants.
That was over a week ago.
The lack of supervision over the MCOs has put many good providers out of business, has neglected to provide many Medicaid recipients of their medically necessary needs, has forced so many good providers to fire staff and not provide Medicaid services (due to the MCOs denying services of Medicaid recipients and refusing/terminating Medicaid contracts with good behavioral health care providers).
Call me naive, but I actually think if I spoke to Sect. Wos, she would care and try her best to remedy the catastrophic situation for behavioral health providers. Maybe not. But one can dream.
This is a solicitation. (This is an effort to thwart any possible assertions that my disclaimer is not enough. I have put my warning. See also my disclaimer).
In fact, this is a group of providers meeting together who have been wronged monetarily by the Medicaid system, whether by DMA, the MCOs, and/or the RACs, to discuss future options. We had a similar group session May 11, 2012, in Raleigh and it was met with great success! Many providers attended. We were able to share stories. At the end of the meeting, everyone was excited for the future. So we wanted to host one more meeting in the western portion of the state to invite additional providers. June 15th will be our cut-off. If you are interested in this cause, please come to our June 1st meeting!!!
WHERE: The Cornwell Center at Myers Park Baptist Church, 2001 Selwyn Avenue, Charlotte, NC
WHO: (Any provider that answers “Yes” to the following questions)
Have you been placed on Pre-Payment Status and been unable to meet the standards to get off of Pre-payment Status?
Have you been told that you are not in good standing with DMA and have been unable to receive assistance restoring your standing?
Have you been wrongly denied access to one of the new MCO provider networks?
Have you been told that your Medicaid number is being terminated or has been terminated?
Have your Medicaid payments been wrongly suspended?
Have these actions resulted in loss of income, your business closing, emotional stress, or other negative consequences?
Have you received a Tentative Notice of Overpayment stating that you must pay back money to the State?
If so, please join us!
Knicole C. Emanuel
Lunch will be provided so please RSVP to by clicking the REGISTER NOW link.
Questions? Please contact Caitlin Williamson at email@example.com or 804.420.6267.
Knicole C. Emanuel – 919.981.4031 – firstname.lastname@example.org
Since the onslaught of the Medicaid audits on NC health care providers who accept Medicaid, I have been curious as to how many providers have determined that they no longer wanted to accept Medicaid. Most of my clients have mentioned the fact that after their current issue (whatever that issue is), they were not going to deal with Medicaid anymore. They are sick of the erroneous audits, the difficulty in dealing with the MCOs, the pile of paperwork they have to provide to state agencies over and over due to post or prepayment review. They are done with Medicaid.
Why should we care whether these providers continue to accept Medicaid?
Let’s not lose sight of the Medicaid recipients. All these MCOs, RACs and other state agencies are so hell-bent on saving/recouping money, that Medicaid recipients’ mental health care has been lost. 1.5 million North Carolinians rely on Medicaid for their insurance. Yet, less than 60% of physicians/providers accept Medicaid. Even less accept Medicaid when you get into specialized services (approximately 30% dentists in NC accept Medicaid). We need the providers who are willing to accept Medicaid. Medicaid recipients need providers who are willing to accept Medicaid.
This is not the first time providers have been squeezed out of the Medicaid system. Remember back in January 2011, approximately 1800 mental health providers were squeezed out of the system with the implementation of CABHA. All the Medicaid recipients that were seen by providers who were squeezed out, were forced to transfer to other providers. Again, no apparent thought to the care of the Medicaid recipients.
Now, in 2012 and 2013 and beyond, more mental health care providers are being squeezed out due to Medicaid audits, prepayment reviews, post-payment reviews, and suspensions of Medicaid reimbursements (all of which are grossly incorrectly administered).
So what happens to the 1.5 million Medicaid recipients? Somehow the Medicaid recipients’ needs are being lost. MCOs are terminating good provider contracts; RACs are auditing good providers out of business. The Medicaid recipients are not receiving services.
Until now, I have seen no data on the number of providers that have recently decided to no longer accept Medicaid.
Mecklenburg Psychological Association (MPA) has calculated the decrease in mental health providers in Mecklenburg County by analyzing changes in members insurance participation from 2011/2012 to 2013 ( 2011 & 2012 are combined).
The data do not indicate a reason as to why providers dropped their Medicaid participation. And remember, this data only apply to Mecklenburg County. But here is the data:
Insurance Participation Changes of MPA members from 2011/2012 to 2013
2011 & 2012 2013 Change Number of Members 180 176 -4 None (take no insurance) 34 54 20 Aetna 56 60 4 BC/BS 87 90 3 BC/BS State 58 63 5 BC/BS Fed 50 60 10 CBHA 42 53 11 Cigna 29 30 1 Medcost 36 43 7 Medicare 34 35 1 Medicaid 56 25 -31 Magellan 29 30 1 NC HealthChoice 22 17 -5 TriCare 17 24 7 United Behavioral Health 29 29 0 Value Options 24 27 3 Wellpath 12 14 2 Medicaid Changes No longer accept Medicaid -27 Moved – did not renew MPA Membership -5 Did not renew MPA Membership in 2013 -1 New – members who accept Medicaid +2 MPA 3013 Non-renewers 15 Moved 8 Declined 3 No response 4 Deceased 1 New Members 2013 13
Wow. In one county in NC, from 2011/2012 to 2013, 31 providers have opted to no longer accept Medicaid.
Makes you wonder where the Medicaid recipients are now that their providers no longer accept Medicaid. I guess the Medicaid recipients’ needs are still lost.
East Carolina Behavioral Health (ECBH), one of North Carolina’s 10 MCOs had to defend itself at a local Mental Health Town Hall Meeting in Greenville, NC.
Amy Brown, who works at Arc of North Carolina, which is a company-advocate for people suffering from mental illness and/or developmental disabilities, finally asked what so many providers and recipients have been asking for months:
WHY ARE SERVICES GETTING DENIED????
For the news video, click here.
“It appears that there is a growing trend of families being denied services,” Brown, who works at the Arc of North Carolina, told the panel.
Brown, like other families who have shared their story with 9 On Your Side, is frustrated with East Carolina Behavioral Health – the organization that manages local providers.
She says the processes ECBH requires to approve services for the mentally ill is long, tedious and ineffective.
“For those families that are willing to fight it out and go through the appeals process, it’s very frustrating, it’s very long,” Brown says.
ECBH, or any MCO, that denies medically necessary services, are denying Medicaid services for the most needy.
But, believe me, this is NOT isolated to ECBH. ECBH serves Beaufort, Bertie, Camden, Chowan, Craven, Currituck, Dare, Gates, Hertford, Hyde, Jones, Martin, Northampton, Pamlico, Pasquotank, Perquimans, Pitt, Tyrrell & Washington counties. But medically necessary services are being denied outside the above-mentioned counties.
Not only are medically necessary services being denied, but quality, competent health care providers are being DENIED Medicaid contracts or the Medicaid contracts are being rescinded.
People, listen, if a health care provider resides in Beaufort county, NC, that health care provider, in order to provide mental health services to the Medicaid population must contract with ECBH in order to provide services. There is no other option. The provider cannot, for example, just contract with a different MCO, to provide mental health services within Beaufort county. ECBH is the only option in Beaufort county for a Medicaid contract in behavioral health. So, if ECBH, arbitrarily decides that it does not want to contract with Provider X, for whatever reason, Provider X cannot provide mental health services to Medicaid recipients within Beaufort county and be reimbursed for services rendered. Period.
And this is happening. Providers, who have been providing mental health services to Medicaid recipients for, sometimes, years and years, and who have, some, hundreds of Medicaid recipients, are being denied a Medicaid contract with ECBH, and other MCOs, are not receiving the reimbursement for services rendered for themselves and their staff, and are being forced to close their doors or no longer accept Medicaid patients.
The MCOs, including ECBH, seem to be pushing mental health care providers away from Medicaid, resulting in Medicaid recipients not receiving desperately-needed mental health services.
And here I thought mental health is such an important topic…
It’s easy to proclaim that you care about providers and recipients and you want Medicaid recipients to receive quality health care, but it’s a whole other thing to actually determine if the WAY the system is IMPLEMENTED is broken. Maybe it’s not the Medicaid system that is broken; maybe it is the implementation of the system.
George Bernard Shaw said, “People who say it cannot be done should not interrupt those who are doing it.”
I must confess…I do not know much about health care providers’ liability insurance. I just haven’t had to deal with liability insurance many times.
But, a client has recently informed me that their liability insurance will compensate them for 100% of my attorney fees that pertain to my representation germane to their regulatory audit. If this is true, then I have many clients that need to have a chat with their insurance companies.
Please understand…I have NOT read the small print with this insurance coverage. I do NOT know the ins and the outs of this insurance, or, even, whether it will actually, truly cover 100% of attorneys fees.
But, IF there is a possibility of your insurance company covering attorneys fees, what is there to lose?
This is all I know:
Alleged insurance that covers legal fees for regulatory audits? “APA Plus.”
From what I understand, if you pay an extra $15/month, the insurance will cover legal fees associated with regulatory audits, up to $50,000.
Again, please understand, this is hearsay, and I have read no insurance contract. The ONLY reason I am blogging about an issue that I do not have verification of its veracity is because if, and only if, there is even a 1% chance that your insurance company will cover legal fees, this could be such a burden off your shoulders during such a stressful time anyway.
What does it hurt to try?