Category Archives: Obamacare
Have you ever said something that you immediately wished you could put back in your mouth? I know I have! In fact, just recently, I was eating lunch with my husband and one of our closest friends Josh. Josh, his wife, Tracey, my husband Scott and I ride horses together almost every weekend. Our daughters come with us, and it’s a fun family event. So, I should have known that a manger is a tool used in barns to hold the hay for the horses to eat, not just baby Jesus’ bed.
Josh tells me that he is going to pick up a manger. To which I respond, “Josh, why do you need a baby manger?” If words came out of your mouth on a string, I would have grabbed that string and shoved it back into my mouth. Of course, my husband had no end to his ribbing. “Josh, why do they sell baby mangers in Tractor Supply?” And “Baby Jesus was so lucky that someone put a manger in that barn for when he was born.”
At that point, I would have liked to claim that I had a “speak-o.” You know, like a typo, but for speech.
At least this is what Jonathan Gruber has claimed…that he made a speak-o in 2012.
Jonathan Gruber is one of the architects of the Affordable Care Act (ACA). He drafted much of the language included in the ACA. After the ACA was passed, Gruber was interviewed by a number of journalists regarding specific sections of the ACA. One of the sections on which he spoke was the section that allowed for health care premium subsidies for people enrolled in the program who reside in states which created state-run health care exchanges as opposed to states that opted to use the federal exchange. For ease of this blog, I will call this ACA section the “Health Care Premium Subsidies Section.”
As I am sure you are aware if you follow my blog, two appellate court cases came out July 22, 2014, regarding the Health Care Premium Subsidies Section, with polar opposite holdings. In Halbig v. Burwell, the D.C. Circuit Court found that the clear language of the ACA only allows the health care premium subsidies in states that created their own state-run health care exchanges, i.e, residents in NC along with 35 other states would not be eligible for the subsidies. See my blog: “Halbig: Court Holds Clear Language of the ACA Prohibits Health Care Subsidies in Federally-Run Exchanges.”
Juxtapose the 4th Circuit Court’s decision in King v. Burwell, which held that “For reasons explained below, we find that the applicable statutory language is ambiguous and subject to multiple interpretations. Applying deference to the IRS’s determination, however, we uphold the rule as a permissible exercise of the agency’s discretion.”
The two cases were released within hours of each other and came to two entirely different conclusions. Halbig: ACA is clear; King: ACA is ambiguous.
Interesting to note is that D.C. is not a state, and the 4th Circuit clearly embraces five states.
In my Halbig blog, I explain the legal analysis of statutory interpretation. I also explain that based on my reading of the Health Care Premium Subsidies Section, I tend to side with the D.C. courts and opine that the Section is not ambiguous.
If, however, a court finds that the statutory language is ambiguous, the court defers to the agency’s interpretation “so long as it is based on a permissible construction of the statute,” which is clear case law found in the 4th Circuit.
Therefore, once the 4th Circuit determined that the statute is ambiguous, the court made the correct determination to defer to the IRS’ ruling that all states could benefit from the subsidies.
Yet another approach to statutory interpretation is considering the legislative intent. The courts may attempt to evaluate legislative intent when the statute is ambiguous. In order to discern legislative intent, courts may weigh proposed bills, records of hearing on the bill, amendments to the bill, speeches and floor debate, legislative subcommittee minutes, and/or published statements from the legislative body as to the intent of the statute.
Recently, some journalists have uncovered 2012 interviews with Gruber during which he states that the Health Care Premium Subsidies Section was drafted intentionally to induce the states to create their own health care subsidies and not rely on the federal exchange. How’s that for intent?
The exact language of that part of the 2012 interview is as follows:
Interviewer: “You mentioned the health information [sic] Exchanges for the states, and it is my understanding that if states don’t provide them, then the federal government will provide them for the states.”
Gruber: “I think what’s important to remember politically about this is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get the tax credits… I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it.”
What do you think? You think Gruber is pretty explicit as to legislative intent? Well, at least in 2012….
In 2014, Gruber states, as to his 2012 comment, “I honestly don’t remember why I said that. I was speaking off-the-cuff. It was just a mistake. People make mistakes. Congress made a mistake drafting the law and I made a mistake talking about it.”
According to Gruber, Congress made a typo; Gruber made a speak-o.
“It’s unambiguous that it’s a typo,” Gruber tells reporter Chris Matthews from NBC and MSNBC.
Um…a typo when the statement is spoken? Hence, the new word “speak-o” blowing up Twitter.
If Gruber’s statement was truly a speak-o, it was a re-occurring speak-o. Gruber also made two speeches in which he listed three possible threats to the implementation of Obamacare. In both cases the third “threat” was that states would not set up exchanges and, instead, would rely on the federal government.
I anticipate that Gruber’s 2012 and contrary 2014 statements will be at issue as these cases, Halbig and King, move forward.
As for me, I would like to invoke my own speak-o’s. I can only imagine how I will be received when I appear before a court and say, “Your Honor, I apologize. That was a speak-o.”
A lawsuit that could come out as early as tomorrow could be catastrophic for the Affordable Care Act (ACA) in as many as 36 states and impact approximately 5.4 million Americans.
In so many ways, in the last year or so, the all-changing, great and powerful ACA that promised affordable health care for all and “if you like your health care coverage, you can keep it,” has fallen monumentally short of its original, lofty promises.
In a way, we all wanted to believe in the promises of the ACA, like Dorothy in “The Wizard of Oz.” Who can forget the disappointed sigh Dorothy expels when Toto pulls back the curtain of the Great and Powerful Oz only to see a mundane, elderly man with absolutely no super powers or means to grant her wishes. Dorothy wanted Oz to be real. She wanted desperately for Oz to be as Great and Powerful as he proclaimed. However, in reality, he was not.
Like Dorothy wanted Oz to be real, we all wanted the ACA to create an affordable, nationwide health care system…this health care utopia.
So many lofty promises of the ACA have already been crushed, either by the Supreme Court’s decision that allows states to opt-out of Medicaid expansion, or by President Obama himself in executive actions, including an action delaying the employee mandate.
The courts may deflate the illusions of grandeur of the ACA even more with an upcoming and anxiously awaited decision. The case of Halbig v. Burwell, a D.C. Court of Appeals case, has concerned citizens everywhere, who wait on bated breath for a ruling. Halbig could have a huge (negative) impact on health care premiums. Halbig could be the Toto that pulled back the curtain on the ACA.
Let me explain:
There is a subsection of the ACA that allows high insurance premium tax credits, in an effort to make premiums more affordable for low-income families. The subsection applies to individuals who make less than $46,075. In implementing the ACA, it was contemplated that those individuals who make under $46,075 will have difficulty affording the insurance premiums; therefore, the ACA gives nice, large tax credits to offset the costs of premiums.
However, according to the plain language of the statute, these tax credits only apply to those individuals enrolled “through an exchange established by the state.” (emphasis added). Yet two-thirds (or 36) of the states did not establish state-run health care exchanges (including NC). Instead, these states relied on the federal exchange, in part, to avoid additional cost expenditures.
Here is a map of states according to whether it is expanding Medicaid:
The Halbig case asks the question: Can people living in states run by a federal health exchange reap the benefit of tax credits intended for those people participating in an exchange run by the state?
If the Halbig Court takes that stance that the statute is not ambivalent and must be followed exactly as it is written, then millions of Americans will become ineligible for the tax credits for health care premiums, because they will not be enrolled in a state-run exchange. Premiums would sky-rocket and many Americans would be unable to afford health care…again. It is estimated that without the tax credits, the health care premiums will cost 4x as much.
Interestingly, the Internal Revenue Service (IRS) weighed in and issued a highly-contested rule authorizing the federal exchange to issue tax credits. Amidst all the tomfoolery about the IRS targeting 501(c) charities owned by the Tea Party, it is surprising, at least to me, that the IRS would issue such a contentious ruling in favor of the ACA and anti-conservatives.
Hence, the Halbig case, in which Plaintiffs argue that the IRS has exceeded its statutory authority in issuing tax credits to those residing in states with federal exchanges, when the ACA clearly states that the tax credits only apply to state-run exchanges.
If the D.C. Court of Appeals sides in favor of the Plaintiffs, the following could occur:
• Residents of 36 states could pay health care premiums 4x more than promised;
• The ACA would fall short of promises…again;
• The IRS will have exceeded its authority to benefit Democrats…again;
• People may not be able to afford the health care premiums;
• The ACA could risk the downfall of many more promises.
We all wanted the ACA to create health care utopia. We all wanted the Great and Powerful Oz to be Great and Powerful.
But the courts may tell us we just can’t say, “Pay no attention to the man behind the curtain!!”
Here is an interesting article…
Article from Carolina Journal Online by Dan Way:
RALEIGH — With $2 billion in cost overruns the past four years, Medicaid continues to be North Carolina’s most volatile political conundrum, and now unanswered questions about its spending and growth threaten to delay passage of 2014-15 state budget adjustments before next Monday’s deadline.
Things got nasty in a Senate Appropriations Committee meeting last week, and one is left to wonder whether Gov. Pat McCrory and the state Department of Health and Human Services squandered political capital by snubbing budget writers struggling with alarming lapses in vital Medicaid data.
Medicaid “is the linchpin” to writing the 2014-15 budget, said an irritated Sen. Bob Rucho, R-Mecklenburg. “Would someone explain to me why we don’t have [Office of State Budget and Management] or staff people from DHHS here to help us get to an answer so that we can move this budget forward?”
If not a prairie fire, the meeting at least exposed the slow burn of senators handcuffed by a dearth of crucial budget numbers from DHHS. Capital press corps reporters instinctively asked one of their most oft-repeated questions: Is DHHS Secretary Aldona Wos to blame for yet another major Medicaid predicament?
Due to significant backlogs, DHHS cannot provide accurate Medicaid enrollment numbers, valid claims data, and categories into which new enrollees are entered. Without precise, up-to-date information for this fiscal year, drafting an accurate budget for 2014-15 is impossible.
That’s a tough corner to be backed into for McCrory and Wos, who have made Medicaid budget predictability a holy grail.
The exasperation of Sen. Tom Apodaca, R-Henderson, typified the level of lawmaker frustration.
“If push comes to shove,” he said, “we can always issue subpoenas and have the numbers come to us. So let’s not take that off the table.”
The irritability in Senate Appropriations was bipartisan.
“Will we ever know what we need to know?” Sen. Angela Bryant, D-Nash, asked incredulously. “Do we have to be completely at the mercy of executive branch agencies on an issue like this that is so critical to what we do?”
Senate leader Phil Berger, R-Rockingham, explained, in measured but heart-attack serious tones, why there is an elevated sense of urgency, and why he had wanted someone from the budget office at the Appropriations Committee meeting to explain Medicaid numbers that have swung from wildly varying to unaccounted for.
“Our feeling is we need to reach some understanding on the Medicaid number before we can realistically start talking about most of the other things,” including teacher pay raises and pay hikes for state workers, Berger said.
And then there was this jaw-dropping exchange between Sen. Joel Ford, D-Mecklenburg, and Susan Jacobs of the legislative Fiscal Research Division.
“Based upon the uncertainty and the lack of data, how can we say for certain that people are not being overpaid or underpaid?” Ford asked.
“We probably can’t say that,” responded Jacobs. She also dropped a bombshell that it could be “probably late next year” before all necessary numbers are completely and accurately obtained.
“To me that is a very disturbing scenario where we are taking taxpayer money with good intentions, but with no verification that we’re doing the right thing because of a broken system,” Ford said.
Whether he realized it, Ford’s characterization of Medicaid as a broken system oozed irony.
In one of their first official acts upon assuming office in January 2013, McCrory and Health and Human Services Secretary Aldona Wos lambasted the state’s Medicaid program as a chaotic, broken system. Eighteen months later and holding Swiss-cheese Medicaid reports, state senators are grumbling that the agency’s disarray persists.
Pressed by reporters, Berger stopped short of saying he has lost confidence in Wos’ leadership.
“I’ll leave it to others as to why they’re not able to provide that information,” he said, but he insisted this budgeting fiasco shows the need to remove Medicaid from Wos’ control and make it a standalone agency.
The Senate budget calls for $88 million more in Medicaid spending in 2014-15 than the House version. Berger said the Senate used higher, worst-case-scenario numbers.
Berger and his counterparts rightly expressed no appetite for once again using rosy projections only to find out halfway through the budget year that there is a whopping shortfall.
To make matters worse, Senate Majority Leader Harry Brown, R-Onslow, said Fiscal Research staff isn’t even confident the worst-case numbers are sufficiently high. “I think that’s important to make sure everyone understands it.”
Sen. Louis Pate, R-Wayne, co-chairman of the Senate Health and Human Services Appropriations Subcommittee, agreed with frustrated Fiscal Research staff that much of the problem with missing data stems from NC Tracks, the new but deeply flawed Medicaid billing system.
But he was quick to note that Republicans inherited the woefully underperforming computer system that was in development for years under Democratic administrations.
“I don’t know if they made up-to-date adjustments as they went along, and we don’t know if it was tested properly before it went live,” Pate said. Others, including State Auditor Beth Wood, warned last year that the nearly half-billion-dollar system was not ready to launch.
Wos lost control and never regained the upper hand in messaging after she defiantly promised she was going to drag the long-beleaguered NC Tracks over the July 1 finish line, and declared it sound when she did.
The bravado and exuberant can-do proclamations might have seemed politically appropriate for a new administration seeking to position itself as an intrepid change agent.
But Wos would have been wise to have tempered her rookie remarks with caveats about the huge challenges left behind by previous Democratic administrations, downplayed expectations, and more candidly acknowledged what IT skeptics already knew — the system was going to encounter plenty of rollout problems that would require a long time to correct.
Pate was among those declaring that the current Medicaid budgeting calamity further demonstrates the “critical necessity for reorganization” of the agency. But restructuring has been hampered by the unsteadiness of tectonic policy shifts.
Pate is among senators who continue to oppose the latest reform plan favored by McCrory and Wos, and now in bill form in the House. He said the proposal only tinkers around the edges of budget predictability and restraint.
This latest iteration is an accountable care model comprising networks of doctors and hospitals. It was rolled out after the administration’s stunning U-turn from months of championing full-risk managed care, and scoring a coup in recruiting Carol Steckel, a highly sought, nationally renowned expert on Medicaid managed care.
Steckel, former head of the National Association of State Medicaid Directors, left her $210,000-a-year job in North Carolina last September after only eight months working for Wos.
Whether there was a back-story to the swift departure of a highly heralded Medicaid reformer, much like what this year’s Medicaid numbers are, remains a guessing game.
Over last few months, I have noticed multiple examples of a state government attempting to silence opposing views, especially when it comes to Medicaid expansion/reform. Two of them, from Louisiana and Missouri, are discussed in this blog. Those government efforts to silence protests raise serious concerns about the health of our freedom of speech. Is our freedom of speech so limited now that we cannot express dissimilar views from those in government? The First Amendment of our U.S. Constitution protects the freedom of speech.
Here are some out-of-state examples of attempts to thwart the freedom of speech:
Down in Louisiana, a group called Moveon.org, leased a billboard and advertised the following:
For obvious reasons, the Governor of Louisiana, Bobby Jindal, disapproved of the billboard and brought a lawsuit against Moveon.org in federal court requesting the federal judge to Order Moveon.org to remove the billboard.
The federal judge denied the lieutenant governor Jay Dardenne’s request for an injunction, and the billboard remains.
Similarly, in Kansas City, Missouri a couple dozen clergymen were arrested by Capitol police for singing “Amazing Grace” at the legislature. The pastors were peacefully protesting that refusing to expand Medicaid was an “amazing disgrace.” These pastors should have been protected by the freedom of speech and the freedom to assemble.
North Carolina is not immune from these attempts to silence disparate viewpoints. During the 2013 General Assembly session 924 people were arrested during Moral Monday protests. (The Moral Monday protests consist of people chanting and yelling their political views around and in the legislative building). More have been arrested this year during the short session, which is now in session. My firm has its office in the PNC building downtown Raleigh, so each Monday, I can hear the protestors walking the streets, chanting their cheers, and, subsequently, the police sirens. I understand that many issues drive these Moral Monday protests and that Medicaid expansion/reform is one of these issues.
924 arrested people…that’s a lot of people arrested. For each arrested person, taxpayers are paying for the person’s stint, however short, stay at the police station. The police are devoting resources and time to peaceful protesters instead of violent criminals.
In an effort to stay some of these economic considerations and other considerations, the General Assembly had new Legislative Building rules ready before the beginning of the short session that would prohibit people from “making a noise loud enough to impair others’ ability to conduct a conversation in a normal tone of voice” and would provide for the arrest of those “creating an impediment to others’ free movement around the grounds.”
It is understandable that the legislators would like their offices quiet enough to hold conversations; I know my nerves get irritated by loud music or conversations outside my office door. But is prohibiting the loud noise and arresting those noise culprits the right answer? And who is to say what a “normal tone of voice” is. For gracious sake, Bill Clinton argued about the definition of the word “is.” “Normal tone of voice” is vaguer than the word “is.” I know my husband would tell you that my normal tone of voice is “obnoxiously loud,” so is my tone of voice “normal?”
Recently Judge Carl Fox issued an Order stating that the new Legislative Building rules with phrases that include “disturbing behavior” and “disruptive signs,” are too vague to enforce. Judge Fox stayed the General Assembly’s implementation of the new rules until a determination as to the constitutionality of the rules could be made.
As previously stated, North Carolina is not the only state that is attempting to limit speech and protests. And the Republicans are not the only group attempting to silence opposing views. Earlier this year, the federal government, vis-a-vis the IRS, announced that it would try to rewrite rules to limit how much political activity nonprofits can do and still qualify for tax-exempt status, which would limit the ability of social welfare charities to even discuss the political candidates close to an election (hence, inhibiting the freedom of speech).
But, first, why should we care whether people can protest at the legislature or comment on political views?
When I was a first year law school student, one of the core class requirements was Constitutional Law class. The First Amendment to the U.S. Constitution reads:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
There are always exceptions to the general rule of you having the right to say whatever and wherever you like. Despite these limitations, as of now, in America, we still celebrate the freedom of speech.
When evaluating whether a person has the freedom to say something, it is easy to get caught up on the content of the message. Suppose I wrote something here inflammatory against women. Many people would have a hard time discussing the constitutionality of my speech without focusing on the content of that statement. However, our courts must look past the content of the statement to the constitutionality of the speech.
The Supreme Court set its standard for limiting the freedom of speech (that we use today) back in the 1960s. The High Court overruled its previous “clear and present danger” standard and wrote:
“[Our] decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.”
(emphasis added). The above language was written by the Supreme Court in 1969 and was followed by the Cohen v. California case. In Cohen, the Supreme Court overturned a conviction of a man who was wearing a shirt with the depiction: “Fuck the Draft!” inside a courtroom. In one of the most eloquent decisions in history, Justice John Marshall Harlan, who wrote the majority opinion, stated that Cohen’s jacket constituted protected political speech. He wrote that, despite the use of an expletive, “one man’s vulgarity is another man’s lyric.” The First Amendment recognizes enough breadth to permit a wide range of differing political views, even speech that exceeds traditional limitations of courtesy and polite behavior.
It is the logical assessment by Justice Harlan that we need to continue to implement today. In order to determine whether we should limit a person’s freedom of speech, we must close our ears to the content of the speech and determine whether the speech is protected by the Constitution. Read the Constitution. Read Supreme Court cases regarding the freedom of speech. The more polarized the content of the speech, the more likely we may be to immediately ban the speech without due regard for the Constitution.
Think about….what are your hot button topics? Abortion? Fracking? Stem cell research? The death penalty? Racism? Now think about the worst possible thing that any person could say to you, which would incite your anger uncontrollably. Say it to yourself in your head. Then imagine yourself comparing the “hate speech” to whether “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.” Does the imagined words incite you to lawless action? Unless you imagined statements simply horrible, most likely, the words would cause you anger, frustration and resentment, but not cause you to conduct imminent lawless action.
My point is that we cannot confuse constitutionally protected speech with statements by people with differing political and moral views. I remember my dad told me one time, “If there are two people with the exact same opinions, then one person is not necessary.”
Differing views shape our country. But, recently, in the area of Medicaid, health care and Obamacare, people on both sides of the aisle are forgetting to step back and read the Constitution. People on both sides of the aisle are stooping to name calling and attempts to restrict speech. Our Constitution does not limit the freedom of speech to: “anything that will make everyone happy”…or “any statements that are aligned with the views of whoever is in charge.”
What if we lived in a country in which you are thrown in jail for placing a billboard touting your disagreement with the administration’s decisions or for singing “Amazing Grace” in a legislative building?
If we lived in a country in which you could be thrown in jail for speaking your mind, then we need to make immense amendments to our Constitution, and I also better start researching where to move.
One way in which President Obama pushed the Affordable Care Act (ACA) through Congress was the promise that the ACA would, basically, fund itself by the increase in recoupments from providers for fraud, waste, and abuse…hence, the dramatic increase in audits and payments suspensions for both Medicare and Medicaid providers.
Herein lies the problem, by relying on you, who accept Medicare and Medicaid to fund, even a portion, of the ACA, we are de-incentivizing you, as a health care providers, to accept Medicare and Medicaid. Think about this logically, we are placing MORE people in a system (by expanding Medicaid), more people will rely on Medicare and Medicaid as their health insurance, but we are incentivizing FEWER providers to accept Medicaid and Medicare. It is as though we don’t care what happens to the people once we give them insurance. The goal of the ACA seems to be: get more people insured; instead of having the goal to allow everyone to get health care.
But I digress…
Section 6402(h) of the ACA requires suspension of Medicare and/or Medicaid payments when there is a credible allegation of fraud. Before the ACA, the suspension was not mandatory.
So, what constitutes a credible allegation of fraud?
Let me give you a real life example. One of my clients, we will call it Company Good Health, had its Medicare and Medicaid payments suspended based on an anonymous letter claiming Good Health commits Medicaid fraud and sent to the Division of Health and Human Services (DHHS) with no name of the author or return address. Therefore, DHHS had no way to contact the anonymous author to verify whether any sentence within the letter had an ounce of veracity. In fact, the author of the letter may very well have been an ex-girlfriend of the CEO or a bitter competitor for business. There is no way to know.
Yet, according to the ACA, an allegation of fraud is credible if it has an “indicia of reliability.” Look up “indicia.” I did. I found “from Latin plural of indicium (“a notice, information, discovery, sign, mark, token”).” I thought, that’s an unhelpful definition, so I looked up indicia in my legal dictionary, Black’s Law Dictionary. I found, in part, “[t]he term is much used in Civil Law in a sense nearly or entirely synonymous with Circumstantial Evidence. It denotes facts that give rise to inferences, rather than the inferences themselves.” Facts that give rise to inferences. Circumstantial evidence is evidence which may allow a judge or jury to deduce a certain fact from other facts which can be proven. In some cases, there can be some evidence that cannot be proven directly, such as with an eye-witness. (Think of the Scott Peterson trial).
Under the ACA, if there is a fact that gives rise to an inference of an allegation of fraud, the your Medicare and Medicaid reimbursements must be suspended. I underlined the words in the preceding sentence “inference,” “allegation,” and “must” to emphasize the slight and without any factual verification circumstance may be that causes suspension of payments. For many of you, this suspension is financially debilitating and will cause you to go out of business…or, at the very least, never accept Medicare or Medicaid again. Suspensions of payments do not only affect you, if affects your recipients as well.
An example of a mass suspension can be found in our nation’s capital. Recently, in D.C., the Medicaid agency suspended payments to 52% of the city’s home health agencies for personal care services (PCS). The companies hired an attorney and got a temporary restraining order (TRO) preventing the city from withholding funds, but lost at the preliminary injunction.
In an Order denying the preliminary injunction, the Judge stated that “in contrast to a provider’s right to participate in the Medicaid program, there is no constitutional right to receive Medicaid payments.” (To which I disagree, because there is a right to Medicaid payments for services rendered. National case law from multiple jurisdictions illustrates this, but maybe it was not argued before or accepted by this judge).
The Center for Medicare and Medicaid (CMS) has also suspended Medicare payments on a large-scale. CMS suspended Medicare payments to 78 Dallas area home health providers. Last year’s “Health Care Fraud and Abuse Control report” stated that 297 providers were under “active suspension” from Medicare and 105 more suspensions were approved.
Another example of a mass suspension is the behavioral health providers in New Mexico. In June 2013, the Health Services Division (HSD) suspended all reimbursements for 15 behavioral health care providers, all of whom accounted for 87% of New Mexico’s behavioral health care, based on credible allegations of fraud. Most accused providers went out of business.
While both Medicare and Medicaid require the suspension of reimbursements upon a credible allegation of fraud, you are slightly more protected. Medicare suspensions end after 18 months and can only be extended from 6 months in special circumstances.
There is no such protection for you when it comes to Medicaid; the states make the rules. There is a good cause exception that allows the state NOT to suspend payments, but, to date, I have yet to witness one good cause exception being recognized by the state. Instead, relief for the accused providers only comes from filing a lawsuit, most likely, an injunctive lawsuit. The downside of filing a lawsuit is that you have to pay attorney’s fees, which can be daunting, and you must find an attorney that specializes in Medicare and Medicaid. I have seen too many inexperienced, but well-intended, attorneys create bad law for providers due to self-imposed, legal stumbles.
The enigma within the language of the ACA, in this particular section, is the complete disregard for due process. See my blog on “How the ACA Has Redefined the Threshold for “Credible Allegations of Fraud” and Does It Violate Due Process?” By suspending Medicare and Medicaid reimbursements due to “indicia of reliability of an allegation of fraud,” the government is usurping your right to payment for services rendered without notice and an opportunity to be heard, which is one of the bedrocks of our Constitution.
So what are you to do if you are caught up in this web of mass suspensions based on “indicia of reliability of an allegation of fraud?”
Contact your Medicare and Medicaid litigation attorney! And do NOT forget to fill out the “good cause” exception…just in case…
Medicare Appeals to OMHA Reaches 15,000 Per Week, Yet Decisions Take Years; Hospital Association Sues Over Medicare Backlog
When you are a health care provider and make the business determination to accept Medicare or Medicaid, you are agreeing to deal with certain headaches. Low reimbursement rates and more regulations than you can possibly count make accepting Medicare and Medicaid a daunting experience. Throw in some pre- and post-payment review audits, some inept contractors, and dealing with the government, in general, and you have a trifecta of terrible to-dos.
But having to “pay back” (by reimbursement withholding) an alleged overpayment before an appeal decision is rendered is not a headache which hospitals have agreed to take, says the American Hospital Association. And it said so very definitively, in the form of a Complaint in the U. S. District Court for the District of Columbia
In both Medicaid and Medicare audits, if you get audited and are told to pay back XX dollars, you have a right to appeal that determination. Obviously, with Medicare, you appeal on the federal level and with Medicaid, you appeal to the state level. But the two roads to appeal (the state and federal) are not identical. Robert Frost once said, “Two roads diverged in a wood, and I, I took the one less traveled by, And that has made all the difference.” However,the Medicare appeal route is NOT the route less traveled by.
As of February 12, 2014, over 480,000 Medicare appeals were pending for assignment to an Administrative Law Judge (ALJ), with 15,000 new appeals filed each week. In December 2013, HHS Office of Medicare Hearings and Appeals (OMHA) announced a moratorium on assignment of provider appeals to ALJs for at least the next two years, and possibly longer. The average wait-time for a hearing is approximately 24 months, but will undoubtedly increase quickly due to the moratorium. A decision would not come until later. And all the while the parties are waiting, the provider’s reimbursements will be withheld until the alleged overpayment amount is met. Literally, a Medicare appeal could take 3-5 years.
The American Hospital Association is fed up. And who can blame them? On May 22, 2014, the American Hospital Association (AHA) filed a Complaint in the United States District Court in the District of Columbia against Kathleen Selebius, in her official capacity as Secretary of Health and Human Services (HHS), complaining that HHS is noncompliant with federal statutory law because of the Medicare appeal backlog. I am not surprised by AHA’s Complaint; I am only surprised that it took this long for a lawsuit. I am also surprised that more providers, other than hospitals, are not taking action.
AHA is requesting relief under the Mandamus Act, 28 U.S.C. § 1361. The Mandamus Act allows a court to compel an officer or employee of the United States or any agency thereof to perform a duty owed. In this case, the AHA is saying that HHS has a statutory duty to resolve Medicare appeals within 90 days. So, AHA is asking the district court to compel HHS to resolve Medicare appeals by not later than the end of the 90-day period beginning on the date a request for hearing has been timely filed.
And, here, I am obliged to insert a quick, two thumbs-up for our very own Office of Administrative Hearings (OAH) in NC for its handling of Medicaid appeals. If you file a contested case at OAH, it will not take 3-5 years.
AHA’s lawsuit is significant because AHA does not restrict the relief requested to only hospital Medicare appeals. AHA requests that the District Court “enter a declaratory judgment that HHS’s delay in adjudication of Medicare appeals violates federal law.” If granted, I would assume that this declaratory judgment would impact all Medicare providers. The only way to ensure all providers are covered by this decision is for all providers to either (1) file a separate action (to include damages, which is not included in AHA’s action for some reason); or (2) to join AHA’s action (and forego damages), but its impact will be broad. I am not sure why AHA did not seek damages; the time value of money is a real damage…the non-ability for the hospitals to invest in more beds because their money is stuck at HHS is a real damage…the loss of the interest on the withheld money, which is obviously benefiting the feds, is a real damage.
AHA’s request is not dissimilar to an arrested individual’s right to a speedy trial. During a criminal trial, the defendant remains incarcerated. Therefore, because we believe our liberty is so important, the defendant has a right to a speedy trial. That way, if he or she is innocent, the defendant would have spent the least number of days imprisoned.
With a Medicare audit appeal, HHS begins immediately withholding reimbursements until the alleged overpayment amount is met, even though through the appeal, that overpayment will most likely be decreased quite substantially. Apparently, across the nation, the percent of overturned Medicare audits through appeal is around 72%, but I could not find out whether the 72% represents ANY amount overturned or the entire 100% of the audit being overturned. Because, in my personal experience, 99.9% of Medicare appeals have SOME reduction in the alleged amount (I would have said 100%, but we are taught not to use definitive remarks as attorneys).
Because the provider’s Medicare money is withheld based on an allegation of an overpayment, the fact that the cases are backlogged at the ALJ level is financially distressing for any provider.Even without the backlog, Medicare appeals take longer than Medicaid appeals. In Medicare, there is four-step appeal process. Going before the ALJ is the 3rd level.
First, a Medicare appeal begins with the Medicare Administrative Contractor (MAC) for redetermination. The MAC must render a redetermination decision within sixty days.
If unsuccessful, a provider can appeal the MAC’s decision to a Qualified Independent Contractor (“QIC”) for reconsideration. QICs must render a decision within sixty days.
Provided that the amount in controversy is greater than $140 (for calendar year 2014), the next level, and where the backlog begins, is at the level of appeal to an ALJ. The ALJ is required both to hold a hearing and to render a decision within ninety days, which is not happening.
Hence, AHA’s lawsuit. Hopefully AHA will be successful, because a backlog of Medicare appeals at the ALJ level doesn’t help anyone. And audits are not going away.
I have always believed in the concept to think first, act second. I rarely react; I try to act. In politics, generally, this mantra is not followed. If a public poll states that the public is in favor of X, then the leaders need to consider X. If it is an election year, then the politicians will do X.
I’m reminded of an awful book I read a couple of years ago. I can’t remember the name of it, but it began with a young teen-age couple at a lake. The boyfriend dives off of a dock into the lake and dies because his head hit a rock underneath the water. (I do not suggest reading the book). But I remember thinking… “How tragic,” then… “Why in the world would this guy dive head-first into a lake without knowing the depth or pitfalls? This was a preventable death.”
This is a perfect example of why we should think first, act second.
However, in politics, the polarization of the two parties, Republican and Democrat, sometimes causes politicians to RE-act according to the party lines. Nowhere is this polarization more prevalent than the concept of Medicaid expansion. See my blog: “To Expand, Or Not To Expand, A Nationwide Draw?” It seems that if a state has a Republican governor, without question, that state will refuse to expand (I know there are few exceptions, but there are few). If a state elected a Democratic governor, then the state has elected to expand Medicaid.
Are these issues so black and white? Or have we become so politically polarized that true intellect and research no longer matters? Doesn’t that actual state of the state matter in deciding to expand?
For example, according to a 50-state survey by USA Today, North Dakota is the best run state. North Dakota has zero budget deficit, and an unemployment rate of 3.1%, the lowest of all 50 states. North Dakota has opted to expand Medicaid.
On the other hand, according to the same study, North Carolina has an unemployment rate of 9.5%, which is the 4th highest in the nation. What does high unemployment mean? A large number of Medicaid recipients.
North Dakota has approximately 82,762 Medicaid recipients, according to the Kaiser Foundation for FYE 2010. Conversely, North Carolina, for the same year, had 1,813,298 Medicaid recipients.
So my question is: Can, or should, a state with 1.8 million Medicaid recipients adopt the same Medicaid eligibility rules as a state with 82,000 Medicaid recipients?
And how can we know the consequences of expansion prior to deciding to expand? Because, after all, shouldn’t we think first, act second? Who wants to dive into an unknown lake?
But issues that apparently no one had contemplated are cropping up…
States across America are seeing unexpected Medicaid costs increase. According to the Associated Press, prior to Medicaid expansion there were millions of Americans who were eligible for Medicaid but who, for whatever reason, had never signed up. Now that there has been so much publicity about health care, those former un-insured but Medicaid-eligible people are signing up in droves.
In California, State officials say about 300,000 more already-eligible Californians are expected to enroll than was estimated last fall. See article.
Rhode Island has enrolled 5000-6000 more than its officials expected. In Washington State, people who were previously eligible represent about one-third of new Medicaid enrollments, roughly 165,000 out of a total of nearly 483,000.
While the Feds are picking up the costs for Medicaid recipients now eligible because of the expansion (at least for a few years), state budgets have to cover these new Medicaid recipients signing up who had been eligible in the past.
For states blue or red, the burden of these unanticipated increased costs will be on the shoulders of the states (with federal contribution).
Going back to the extremely polarized view of Medicaid expansion (Democrats expanding and Republicans not expanding)…maybe it’s not all black and white. Maybe we should shed our elephant or donkey skins and actually research our own states. How many Medicaid recipients do we have? What does our budget cover now?
Maybe we should research the consequences before diving in the lake.
There are more people on Medicaid than Medicare.
Think about that. There are more people in America who qualify for Medicaid than Medicare. Yet, as a nation, we spend more on Medicare than Medicaid. (I assume because the older population requires more expensive services). 58 million people relied on Medicaid in 2012 as their insurance.
And Medicaid is growing. There is no question that Medicaid is growing. When I say Medicaid is growing, I mean the population dependent on Medicaid is growing, the demand for services covered is growing, and the amount of money required to satisfy the demand is growing. This means that every year we will spend more and more on Medicaid. Logically, at some point, at its current growth pattern, there will come a point at which we can no longer afford to sustain the Medicaid budget.
If you think of the Medicaid budget as a super, large balloon, imagine trying to inflate the balloon more and more. At some point, the balloon cannot withstand the amount of air being put into it and it…POPS.
Will Medicaid eventually POP if we keep cramming more people into it, demanding more services, and demanding more money to pay for the increased services?
First, let’s look at the amount of money spent on Medicaid last year.
The Center for Medicare and Medicaid Services (CMS) just released the 2013 Actuarial Report on the Financial Outlook on Medicaid and its report considers the effect of Obamacare.
The CMS report found that total Medicaid outlays in 2012 were $431.9 billion.
The feds put in $250.5 billion or 58%. States paid $181.4 billion or 42%. In 2011, the federal government’s percentage of the whole Medicaid expenditure was 64%.
The CMS report also made future projections.
“We estimate that the [Affordable Care] Act will increase the number of Medicaid enrollees by about 18 million in 2022 and that Medicaid costs will grow significantly as a result of these changes starting in 2014.”
The 10 year projection, according to the report, is an increase in expenditures at an annual rate of 7.1%. By 2022, the expenditures on Medicaid will be $853.6 billion.
Just for some perspective…a billion is a thousand million.
If you sat down to count from one to one billion, you would be counting for 95 years (go ahead…try it!).
If I gave you $1000 per day (not counting interest), how long would it take you to receive one billion dollars? Answer: 2,737.85 years (2,737 years, 10 months, 7 days). Now multiply 2,737.85 years by 853.6.
That’s a lot of years!!
In the next ten years, average enrollment is projected to reach 80.9 million in 2022. It is estimated that, currently, 316 million people live in America.
So the question becomes, how can we reform, change, alter (whatever verb you want to use) Medicaid so that we can ensure that the future of Medicaid is not a POPPED balloon? While I do not have the answer to this, I do have some ideas.
According to the CMS report, per enrollee spending for health goods and services was estimated to be $6,641 in 2012. I find this number interesting because, theoretically, each enrollee could use $6,641 to purchase private insurance.
Remember my blog: “A Modest Proposal?” For that blog, I used the number $7777.78 per enrollee to purchase private insurance, which would require an increase in Medicaid spending assuming we give $7,777.78 to each enrollee. But think of this…the amount would be a known amount. Not a variable.
My health care, along with health care for my husband, costs $9,000/year. My cost includes two people. If I wanted individual insurance it would only have cost $228/month or $2,736/year.
What are other options to decrease the future Medicaid budgets and to avoid the big POP:
- Decrease Medicaid reimbursements (really? Let’s make LESS providers accept Medicaid);
- Decrease covered services (I would hope this idea is obviously stupid);
- Decrease the number of recipients (I believe the ACA shot this one out of the water);
- Create a hard cap on Medicaid spending and refuse to allow services over the cap regardless of the medical necessity (Again, I would hope this idea is obviously stupid);
- Decrease administrative costs (this is apparently an impossible feat);
- Create more difficult standards for medical necessity (I believe the ADA would have something to say about that); or
- Print more money (Hmmmm…can we say inflation?).
Please, if anyone else has a good idea, let me, or, better yet, your General Assembly, know.
Because without question the future of Medicaid is larger and more expensive than today. We want to avoid that…
In microeconomics, you learn the theory of supply and demand, which is, basically, a model to determine the price of a product. The most basic explanation of supply and demand is if the demand for the product is high and the supply is low then the price of the product will be high. Take diamonds, for example. Whenever there is a finite amount of something the value goes up. I remember my dad telling me to invest in land abutting water. The reason? There is a finite amount of land abutting water. Once all the land is sold that touches water, it is gone unless someone decides to resell.
Similarly, there is a finite number of doctors or health care providers who accept Medicaid. Recently data show that Medicaid enrollment has jumped 3 million since October 2013. There are approximately 61 million Americans on Medicaid and approximately 319,510,848 Americans total. This increase in Medicaid enrollment is mainly due to 26 states expanding Medicaid due to the ACA, although Medicaid enrollment has increased in the states that opted to not expand as well.
That’s GREAT…..right?? 3 million more people are covered by health insurance than were covered back in October 2013. However, although theoretically the statistic should correlate to more people getting medical coverage, it may not.
We cannot assume that offering people Medicaid coverage will necessarily provide them with adequate access to health care services.
While the number of people on Medicaid is climbing, there is no evidence that the number of providers who accept Medicaid is climbing.
Health-care consulting firm, Merritt Hawkins, conducted a 2014 survey of Medicaid acceptance rates in the U.S.’s largest 15 cities. The 2014 survey researched five medical specialties: cardiology, dermatology, obstetrics-gynecology, orthopedic surgery, and family practice. It also calculated the average wait-time for Medicaid recipients to see a doctor in one of the five specialties.
The survey found that only 45.7% of physicians are now accepting Medicaid patients. This is a decrease from 55.4% in 2009 and 49.9% in 2004. Compare the percentage of physicians accepting Medicare, which is 76%.
The percentage of physicians accepting Medicaid varies immensely state by state. In Dallas, TX only 23% of physicians accept Medicaid; whereas in Boston 73% of the physicians accept Medicaid (but even though Boston seems to have more physicians accepting Medicaid, the wait time is not good; the average wait time to see a dermatologist in Boston is 72 days).
Much of the problem is high population and low percentage of doctors. See the table below.
Even more of the problem is that physicians refuse to accept Medicaid. So, looking at the above chart, and based on an estimated current U. S. population of about 319,510,848, there are two physicians for every 845 persons. Yet, only 23% of physicians accept Medicaid in Dallas. Less than half the physicians nationally accept Medicaid. So, of the 845 physicians, roughly 422 of the physicians will refuse to accept Medicaid. More and more Medicaid insured people will have fewer physicians. This is a scary thought.
Remember the horrible tragedy of Deamonte Driver? Even though Deamonte Driver died due to not seeing a dentist, not a physician, the analogy still applies. A 12-year-old Maryland boy, Deamonte Driver, died when a tooth infection spread to his brain. His mother, Alyce Driver, had been unable to find a dentist to treat him on Medicaid. Deamonte Driver died not because he was uninsured; he died because he was insured by the government.
Now imagine that it is not a dentist a parent is trying to find, but a cardiologist, where, in D.C., if you are on Medicaid, the average wait-time to see a cardiologist is 32 days. If only your heart problems would pause for 32 days.
The average cumulative wait times to see a cardiologist in all 15 markets was 16.8 days. Whereas if I were to call up a cardiologist, I would be able to make an appointment within a day or so.
I found a blog online that charted why doctors will not take Medicaid. See below.
To physicians, Medicaid is a pain in the arse that reimburses them too little to warrant the pain.
Medicaid recipients suffer.
Going back to the 3 million increase in Medicaid enrollment…that’s great, right? Maybe. It depends whether the recipients can find a doctor.
As I am sure most of you have heard, April 10, 2014, Kathleen Sebelius, former Secretary to Health and Human Services (HHS), resigned. Some journalists wrote that her resignation came 6 months after “the disastrous rollout of Obamacare,” obviously alluding that she was fleeing from her position as Secretary. But is that why Sebelius left? And who is Sylvia Mathews Burwell?
It is no secret that when Healthcare.gov went live on October 1, 2013, Sebelius called the roll-out a “debacle.” But recent figures show enrollment in Obamacare exchanges has surpassed 7.5 million.
Sunday Sebelius stated that “Clearly, the estimate that it was ready to go Oct. 1 was just flat-out wrong.”
According to Politico Pro, “a White House official said Sebelius told Obama in March that she planned to resign. She felt that the Affordable Care Act trajectory was back on track, and believed “that once open enrollment ended it would be the right time to transition the Department to new leadership.””
It seems that Sebelius did not want to resign during the height of the debacle. She waited until things smoothed out a bit before walking away.
Obama has chosen Sylvia Mathews Burwell, his budget Director, to replace Sebelius.
Who is Burwell?
Burwell served as deputy White House chief of staff during the Clinton administration. She also served at the Office of Management and Budget (OMB) twice, once as director. She has also worked at the Bill and Melinda Gates Foundation. (Speaking of Bill and Melinda Gates Foundation and people with obscene amounts of money, why don’t people ever set up charities to pay for Medicaid recipients to receive private insurance with the co-pays all covered? If I ever get an obscene amount of money I would set up a Medicaid Foundation. The Emanuel Medicaid Foundation. Look for that in the VERY FAR future, folks.).
Going back to Burwell…she received her bachelor’s degree in government from Harvard University. She also received her bachelor’s degree in philosophy, politics and economics from Oxford University. Seriously? Is that a quadruple major from 2 colleges?
Her grandparents were Greek immigrants, and she grew up in West Virginia.
There isn’t much more information on Burwell. She is relatively young (48) and holds a relatively small resume considering the enormous undertaking she is about to assume.
Obama nominated Burwell one day after Sebelius resigned. There is no indication of whether Burwell was Obama’s first choice. It took him one day to replace Sebelius, which is pretty amazing. Remember, we still haven’t replaced former Medicaid Director, Carol Steckel. Sandy Terrell is still the “Acting Director.” Whew, it has got to be difficult to fill these intimidating positions.
I can only imagine how many people would NOT want to be Secretary of HHS. Talk about a big job! Talk about high stress!
Burwell has not been confirmed yet. Despite Burwell not being a common household name when Obama nominated her, it is without question that Burwell has now stepped into the limelight. If confirmed, Burwell will be one of the most powerful people in health care…and one of the most scrutinized.
Good luck, Burwell!! Make Burwell a household name…for good reasons. And when someone says, “Burwell who?”
Someone else will respond, “That is the Secretary for HHS.”