Category Archives: Obamacare

Demand With Little Supply: Medicaid Enrollment Up, Physicians’ Acceptance of Medicaid…Not!

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.

Physician ratio

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.

doctors no medicaid

See blog.

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.

Knock, Knock. Who’s There? Burwell. Burwell Who?

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

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.”

How the ACA Has Redefined the Threshold for “Credible Allegation of Fraud” and Does It Violate Due Process?

I believe that everyone would agree with me that The Affordable Care Act (ACA) has done more to impact health care legally…probably since 1966 when Medicare was established.  Whether you think the impact is beneficial or negative, it does not matter.  The impact exists nonetheless.

One of the changes the ACA has yielded is the threshold for suspending Medicare and Medicaid payments to providers based on credible allegations of fraud is lower. 

While CMS regulations authorized the suspension of Medicare and Medicaid payments prior to the enactment of the ACA, § 6402(h) lowers the standard the government must meet in order to suspend payments based upon suspected fraud.

The lower standard for a state to suspend Medicaid and Medicare payments nip…nay, I say…bite at the fabric of due process.

First, what is a “credible allegation of fraud?”

Credible allegation of fraud means an allegation from any source, such as data mining, whistleblowers, and/or fraud hotline complaints.  Quite literally, you could be accused of having credible allegations of fraud because an ex, disgruntled employee calls the fraud hotline.

The definition of “credible” is equally as scary.  If there is “indicia of reliability,” it is credible.  I have no idea what “indicia” means, but it does not sound like much.    So if there is indicia of reliability when your ex, disgruntled employee calls the fraud hotline, there may be credible allegations of fraud against you.

When you have credible allegations of fraud against you, your Medicaid/Medicare payments are suspended.  Without an opportunity to rebut the allegations.  Without you even knowing from where the allegation came.

I make the analogy (albeit, admittedly, a poor one) of my law license.  Or an M.D.’s license.  Or a teacher’s license.  We do not have a right to a law license.  But, I argue, once you go through the process and pass the necessary tests and are awarded a law license (or M.D. license or teacher’s license), you have a protected property right in continuing in the profession. 

There is a good cause exception and you should try to assert the exceptions, but this blog concentrates on the suspension and the due process (or lack thereof) involved.

CMS states that providers have “ample opportunity to submit information to us in the established rebuttal statement process to demonstrate their case for why a suspension is unjust.”

However, think of this…in Medicare, notice to the provider is not required prior to the suspension.  So, I ask you, how can you plead the suspension is unjust when you have no notice? Obviously, only after the suspension has been put into place. Due process violation?

In Medicaid, the agency must notify the provider of the suspension within 5 days of taking the action.  Although it can be extended to 90-days upon request of a law enforcement agency.

Even though the Medicare suspension statutes do not require notice, the Medicare statutes are a bit more provider-friendly when it comes to the length of time during which you may be suspended.  For Medicare providers, the suspension can last a period of 180 days.  However, the 180 days can be extended.

Conversely, for Medicaid providers, there is no scheduled period of suspension.

In my cursory review of case law, I found one case in which the Medicaid provider had suffered suspension of Medicaid reimbursements for over 4 years.  Obviously, the company had closed and staff had been terminated.  You cannot maintain a business without revenue.

So, is the suspension of Medicare and Medicaid payments upon a credible allegation of fraud a violation of due process?

 Due process. 

Do not even get me started on the importance of due process.  In fact, I have blogged about the importance of due process before in this blog. “NC Medicaid and Constitutional Due Process.”

Due process is generally described as notice and an opportunity to be heard.  But due process does not apply to everything.  For example, you do not have due process rights to your drivers’ license.  Certain infractions will cause you to lose your drivers’ license without due process.  That is because driving is a privilege, not a right.  You do not have a right to drive.  Instead due process attaches when a liberty or a property right is deprived.

Rights include:

The right to vote (for some…not felons)

Freedom of religion

Freedom of speech

Obviously, in certain circumstances, those rights can be restricted (shouting fire in a crowded movie theatre, for example).  But, generally, you have due process to the deprivation of any of your rights.

For purposes of this blog, we are concentrating on whether due process attaches to the deprivation of Medicare and Medicaid reimbursements.   If someone takes away your Medicaid and/or Medicare reimbursements, are you entitled to due process…or notice and an opportunity to be heard?

Some courts have held that “health care providers have a constitutionally protected property interest in continued participation in the Medicare and Medicaid programs.” 

Obviously, in the jurisdictions in which this view is followed, without question, you have a right to due process upon suspension of Medicaid and/or Medicare reimbursements.

However, the view that Medicaid and Medicare participation is a constitutionally protected right is not the majority view.  Or, I should say, this particular issue has not arisen in all jurisdictions.  Some jurisdictions have not even considered whether the participation in Medicaid and Medicare is a protected property interest.

To be completely clear, there is no protected property interest in procuring a Medicaid or Medicare contract.  Only once you receive the contract does your interest in the contract become protected (in those certain jurisdictions).

North Carolina, for example, has not contemplated this issue (at least, not since after 10 NCAC 22F.0605 was enacted).

Interestingly enough, 10A N.C. A. C. 22F.0605 states “[a]ll provider contracts with the North Carolina State Medicaid Agency are terminable at will. Nothing in these Regulations creates in the provider a property right or liberty right in continued participation in the Medicaid program.”

So, one would think that, in NC, there is no protected property interest in continued participation in the Medicaid program.

However, in the Office of Administrative Hearings (OAH), this very issue was contemplated in a few contested case hearings and the Administrative Law Judges (ALJ) have decided that there is a protected property interest in the continued participation of the Medicaid program, despite 10A N.C. A. C. 22F.0605.  The decisions are based on federal and state law.

 “North Carolina statutes and rules provide procedural due process.  Federal Medicaid regulations are replete with provisions that require that notice be given to the provider of the suspension or termination of Medicaid payment for services.”

 “The Supreme Court has ruled that property rights can be created by administrative regulations and that the “sufficiency of the claim of entitlement must be decided by reference to state law.”‘ (Internal cite omitted). Bowens v. N.C. Dept. of Human Res., 710 F.2d 1015, 1017 (4th Cir. 1983).  Our state statutes and rules have the procedural and substantive safeguards, indicating that the provider’s participation is not terminable at will.” (This opinion was written after 10A N.C. A. C. 22F.0605 was enacted).

While these OAH decisions have not undergone judicial review, at least, in OAH, providers may have a protected property interest in the continuation of participation in the Medicaid program.  And analogous argument would exist for Medicare providers.

Who knows? Maybe NC will follow the view that providers have a protected property interest in continuing participation in Medicaid…

Just imagine if the government could snatch away law licenses…or M.D.’s licenses…or teachers’ licenses…without any due process.  We would live in fear of losing our livelihoods.

HHS Announces More Time for Noncompliant Plans, Other ACA Policies

BNA’s Health Care Policy Report:

Posted March 5, 2014

The Obama administration March 5 said consumers can keep their health plans that don’t comply with the Affordable Care Act for two more years, as part of a release of new ACA rules and policies.

The Department of Health and Human Services noted that in fall 2013, the administration extended through 2014 noncompliant health plans in the small group and individual health insurance markets, for insurers that received permission from their state to do so. Now, the department is extending its “transitional policy for two years,” to policy years beginning on or before Oct. 1, 2016.

“This gives consumers in the individual and small group markets the choice of staying in their plan or joining a new Marketplace plan as the new system is fully implemented,” the HHS said.

The HHS also issued a comprehensive ACA insurance markets rule (CMS-9954-F) called the Notice of Benefit and Payment Parameters for 2015. The regulation includes provisions on premium stabilization; open enrollment for 2015; annual limitations on cost sharing; consumer protections; financial oversight; and the Small Business Health Options Program, or SHOP.

For the temporary “risk corridors program,” which helps stabilize premiums when enrollees are much sicker or much healthier than expected, the HHS said it intends to operate the program in a budget-neutral manner, with payments coming in equaling the amount of money going out, “while helping to ensure that prices remain affordable in 2015 and beyond.”

The Treasury Department and the Internal Revenue Service also released final rules (TD 9661) March 5 to implement the information reporting provisions for insurers and certain employers under the ACA that take effect in 2015. Treasury said the final rules on information reporting by employers “will substantially streamline reporting requirements for employers, particularly those that offer highly affordable coverage to full-time employees.” Treasury also released final rules (TD 9660) to provide guidance for reporting by insurers and other parties that provide health coverage under the ACA.

An HHS bulletin on the plan extension is at http://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/transition-to-compliant-policies-03-06-2015.pdf. The HHS and Treasury rules are posted at the public inspection website: http://www.federalregister.gov/public-inspection.

Medicaid Card Warning: This Card Could Cause the State to Recoup From Your Estate!

Have you ever wondered about warning labels? I mean, some of them are so ridiculous that you have to wonder who the person was that created the need for such a ridiculous warning label.

For example, the warning label on the sleep-aid Nytol warns, “May cause drowsiness.” I hope so!

This weekend my husband and I let friends borrow our chainsaw.  The warning on the chainsaw says, “Do not hold on wrong side of chainsaw.”  Really? What moronic person would grab a chainsaw by the saw blade?  But the warning is there, so there must have been at least one person who held the chainsaw by the saw blade, turned on the saw and…you know.

Then comes my personal favorite…my egg carton from the grocery store states, “This product may contain eggs.” My egg carton!  Really?

Medicaid cards should come with warning labels.  Multiple warning labels.  Such as:

“Warning: You may not be able to find a physician willing to accept Medicaid.”

Or

“Warning:  This may not be your card. Review the name prior to use.”

Or

“Warning:  This card could lead to you losing your home.”

What?

For most people, your home is your biggest investment in your lifetime.  Many people want to pass their houses down to children, or, at least, give the children the right to sell the home and keep the money.  To some, the home is the biggest inheritance…maybe the only inheritance.

So how can NC take your home if you are on Medicaid?

According to NC Department of Health and Human Services (DHHS), the estates of Medicaid recipients may be subject to estate recovery if (1) The Medicaid recipient applied on or after October 1, 1994.  (Considering it is 2014, I would guess that most people fall into this category); and one of the following:

(a) is under age 55 and an inpatient in a nursing facility, intermediate care facility for the intellectual developmentally disabled, or other medical institution, and cannot reasonably be discharged to return home; or

(b) is 55 years of age or older and is living in medical facility and receiving medical care services, or home and community-based services, or In Home Care Services (IHC). 

Also, In Home Care Services (IHC) claims for SA recipients ages 55 and over are subject to Medicaid Estate Recovery.

This estate recovery is not new.  Recently, I have seen a few articles on the internet that state that this estate recovery is a new addition to the Affordable Care Act (ACA).  This is incorrect information.  In 1965, estate recovery was optional and states could only recoup Medicaid costs spent on those 65 years or older.  In 1993, Congress passed a budget bill that required states to recover the expense of long-term care and related costs for deceased Medicaid recipients 55 or older. The 1993 federal law also gave states the option to recover all other Medicaid expenses.  The only change that the ACA made to the estate recovery rule is, by expanding Medicaid, providing more estates to be recovered.

“Warning: Medicaid can take your home!”

The estate recovery oddly seems to disproportionately affect people over 55 years of age.

DHHS does state that it will NOT seek a lien on your property while you are alive.  DHHS only seeks the estate recovery after your death.  DHHS also states that estate recovery is waived in some circumstances.  What circumstances are those? And why wouldn’t those circumstances apply to everyone?

What exactly can the state seek to recover?

“At a minimum, states must recover amounts spent by Medicaid for long-term care and related drug and hospital benefits, including Medicaid payments for Medicare cost sharing related to these services. However, they have the option of recovering the costs of all Medicaid services paid on the recipient’s behalf. The majority of states recover spending for more than the minimum of long-term care and related expenses.”  (emphasis added).  See HHS’s website.

Isn’t Medicaid intended to be free health care for low-income and needy people? If the state can recover from a person’s estate after death, did that person really receive free health care? Or was the health care merely a loan?

Warning on the Medicaid card: “Warning! By accepting Medicaid, you are authorizing the state to recover from your estate, and, in some circumstances, your home.” 

But the warning is very tiny print.

Study Shows the ACA Will Not Lead Physicians to REDUCE the Number of Medicaid Recipients, Supply and Demand, and Get Me My Pokemon Cards!

A recent “study” by Lippincott, Williams, and Wilkins is entitled “Doctors Likely to accept New Medicaid Patients as Coverage Expands.”  (I may or may not have belly laughed when I read that title).  See my blog “Medicaid Expansion: Bad for the Poor.”

The beginning of the article reads, “The upcoming expansion of Medicaid under the Affordable Care Act (ACA) won’t lead physicians to reduce the number of new Medicaid patients they accept, suggests a study in the November issue of Medical Care, published by Lippincott Williams & Wilkins, a part of Wolters Kluwer Health.”

The study was published October 16, 2013. (BTW: From what I can discern from the article, the title actually means that physicians will be forced to accept more Medicaid patients because there will not be additional physicians accepting Medicaid).  Odd title.

According to this study, the ACA will not cause doctors to reduce the number of Medicaid patients.  What does this study NOT say?  Nothing indicates that the ACA, which will allow millions more of Americans to become eligible for Medicaid, will cause MORE physicians to accept Medicaid.  Nor does the study state that the ACA will cause physicians to accept MORE Medicaid recipients.

Am I the only person who understands supply and demand?

Anyone remember the 1999 Toys.R.Us.com debacle? On-line shopping was just heating up.  I was in law school, and I, as well as millions of others, ordered Christmas presents on-line from Toys R Us.  I ordered a bunch of Pokemon trading cards for a nephew…remember those? Me either…I just bought them for my nephew.  Toys R Us promised delivery by December 10th. 

Toys R Us was, apparently, a very popular store that year, because Toys R Us is unable to package and ship orders in time to meet the December 10th deadline.  Nor could Toys R Us meet the deadline of Christmas.  Employees were working through the weekends.  About two days before Christmas, and just in time to create last-minute havoc during Christmas time, Toys R Us sends out thousands of emails saying, “We’re sorry.”

Obviously, Toys R Us was slammed by the media, and thousands of consumers were highly ticked off…including me.

I had to go to the mall (a place to which I detest going) on Christmas Eve (the worst day to shop of the entire year, except Black Friday, which I also avoid) to get my nephew a present.

Toys R Us learned its lesson.  It outsourced its shipping to Amazon.com, which, obviously, has the whole shipping thing down pat.

Hypothetical:

50 million people are currently eligible for (and receive) Medicaid services (these numbers are purely fictional, as I do not know the real numbers…I basically estimated 1 million per state, which, I am sure, is an underestimation).  Say there are 3.5 million physicians that accept Medicaid (70,000/state, which is probably a high estimation, when we are considering only physicians and not health care providers, generally). 

Our hypothetical yields 14.28 Medicaid recipients per physician.  Or a ratio of 14.28:1.

Media state that, if NC expanded Medicaid, that 587,000 more North Carolinians would be eligible for Medicaid if NC expanded Medicaid.

Using NC as a state average, 29.35 million more people would be eligible for Medicaid if all states expanded Medicaid (obviously not all states are expanding Medicaid, but, in my hypothetical, all states are expanding Medicaid).  This equals a total of 79.35 million people in America on Medicaid.

But….no additional physicians….

Because, remember, according to the Lippincott study, the upcoming expansion of Medicaid under the Affordable Care Act (ACA) won’t lead physicians to reduce the number of new Medicaid patients they accept.  But the ACA does not lead more physicians to accept Medicaid or physicians to accept more Medicaid patients.

This brings the ratio to 22.67:1.  8 1/2 new patients per one physican…and, BTW, that one physician may not be accepting new Medicaid patients or may not have the capacity to accept more Medicaid patients.  It’s a Toys R Us disaster!!!  No one is getting their Pokemon trading cards!!!

Why not? Why won’t the ACA lead more physicians to accept Medicaid?  Why won’t the ACA lead physicians to accept more Medicaid recipients?

Didn’t the ACA INCREASE Medicaid reimbursement rates?  Wouldn’t higher reimbursement rates lead more physicians to accept Medicaid and physicians to accept more Medicaid recipients???  I mean, didn’t you hear Obama tout that Medicaid rates would be increased to Medicare rates?  I know I did.

One average, Medicaid pays approximately 66% of Medicare reimbursement rates.  Obviously, every state differs as to the Medicaid reimbursement rate.

The ACA, however, slashes the Medicare budget by 716 million from 2013 to 2022.  The cuts are across-the-board changes in Medicare reimbursement formulas for a variety of Medicare providers, including hospitals, nursing homes, home health agencies, and hospice agencies.   Furthermore, the ACA creates the Independent Payment Advisory Board (IPAB), which is intended to determine additional Medicare reimbursement rate cuts. IPAB will be creating a new Medicare spending target; it will be comprised of 15 unelected bureaucrats.  The board will be able to make suggestions to Congress to reign in Medicare spending, and one of the biggest tools the IPAB has is cutting physician reimbursement rates.

It’s the old smoke and mirrors trick…We will raise Medicaid rates to Medicare rates…pssst, decrease the Medicare rate so we can meet our own promise!!

While I am extremely happy to hear that, at least according to the Lippincott study, the ACA will not lead physicians to reduce the number of Medicaid patients they accept, I am concerned that the ACA will not lead more physicians to accept Medicaid and physicians to accept more Medicaid recipients.

In fact, the study states that “[t]he data suggested that changes in Medicaid coverage did not significantly affect doctors’ acceptance of new Medicaid patients. “[P]hysicians who were already accepting (or not accepting) Medicaid patients before changes in Medicaid coverage rates continue to do so,” Drs Sabik and Gandhi write.  I bet the Drs. did not ask, “Would you continue to accept Medicaid, if you knew that your practice would endure more audits, post-payment reviews, possible prepayment reviews, and, in general, suspensions of reimbursements if anyone alleges Medicaid fraud, irrespective of the truth?”

Which tells me…hello…more Medicaid recipients, not more doctors!! Even if the physicians already accepting Medicaid COULD accept additional Medicaid recipient patients, each physician only has a certain amount of capacity.  To my knowledge, the ACA did not increase the number of hours in a day.  Supply and demand, people!!

Where are my Pokemon cards???!!!

NC Medicaid Providers: “Credible Allegations of Fraud?” YOU ARE GUILTY UNTIL PROVEN INNOCENT!!

“Credible allegations of fraud.”  What does that mean???

As it pertains to Medicaid, “credible allegations of fraud” was first introduced into law by the Affordable Care Act (ACA) in 2010.  The Centers for Medicare and Medicaid (CMS) issued its Final Rule February, 2, 2011, and the Informational Bulletin in March 2011.

As you can see, “credible allegations of fraud,” as pertaining to Medicaid, is a relatively new concept.  But what does it mean?  The ACA does not define “credible allegations of fraud.”

I know what “allegation” means.  I also know allegations are not always true.  I also know allegations can change your life. 

When I was a senior in high school, I had been dating my high school sweetheart for 2 years.  An acquaintance, and an apparently, mean-spirited girl, alleged that my boyfriend cheated on me with another girl.  I was so angered and so hurt that I called up my boyfriend immediately and broke up with him.  For weeks, my boyfriend hounded me, professing his innocence.  But I was not to be swayed.  I refused phone calls, avoided seeing him, and publicly disparaged him to my friends.  20 years later I saw him.  I asked him whether he had really cheated on me, knowing that he had no reason to lie now (he is married with 4 children; I am happily married with one child).  But I was just curious because that allegation that he had cheated changed both our lives.  I am not saying that had it not been for the allegation that he and I would be together…not at all…in fact, I am sure we would have eventually broken up.  The point is that the allegation that he cheated, for good or for bad, changed our lives.  And, to me, he was guilty based on the allegation.

20 years later I found out that the allegation was false.  He never cheated.  But his innocence did not change the consequences of the accusation.  He was guilty until proven innocent.

Similarly (and more importantly), a mere accusation that a Medicaid provider is undergoing abhorrent billing practices or committing Medicaid fraud, and without any proof, can change a provider’s life.  A mere allegation of fraud suspends a Medicaid provider’s reimbursements.  The consequence of which can be dire…You are guilty until proven innocent.  Just like my boyfriend.  The accusation alone made him guilty.

According to 42 C.F.R. 447.90, “This section implements section 1903(i)(2)(C) of the Act which prohibits payment of FFP with respect to items or services furnished by an individual or entity with respect to which there is pending an investigation of a credible allegation of fraud except under specified circumstances.”  FYI: FFP stands for Federal Financial Participation (or Medicaid reimbursements in the vernacular).

Section 1903(i)(2)(C) of the Social Security Act (SSA) states that no payments shall be paid to “any individual or entity to whom the State has failed to suspend payments under the plan during any period when there is pending an investigation of a credible allegation of fraud against the individual or entity, as determined by the State in accordance with regulations promulgated by the Secretary for purposes of http://www.ssa.gov/OP_Home/ssact/title18/1862.htm#act-1862-o”>section 1862(o) and this subparagraph, unless the State determines in accordance with such regulations there is good cause not to suspend such payment.”

But what does “credible allegation of fraud” mean? Where is the definition?  Not in the SSA.

On March 25, 2011, CMS issued an Informational Bulletin in which “credible allegations of fraud” is defined…sort of…

The Informational Bulletin states, “In the final rule, CMS provides certain bounds around the definition of “credible allegation of fraud” at 42 C.F.R. § 455.2. Generally, a “credible allegation of fraud” may be an allegation that has been verified by a State and that has indicia of reliability that comes from any source. Further, CMS recognizes that different States may have different considerations in determining what may be a “credible allegation of fraud.” Accordingly, CMS believes States should have the flexibility to determine what constitutes a “credible allegation of fraud” consistent with individual State law. However, a credible allegation of fraud, for example, could be a complaint made by an employee of a physician alleging that the physician is engaged in fraudulent billing practices,  i.e., the physician repeatedly bills for services at a higher level than is actually justified by the services rendered to beneficiaries. Upon State review of the physician’s billings, the State may determine that the allegation has indicia of reliability and is, in fact, credible. “

1. An allegation

An allegation by its very definition is “a claim or assertion that someone has done something illegal or wrong, typically one made without proof.” See Wikipedia.  Without proof!!!  Why without proof? Because an allegation is preliminary…an accusation…not a conclusion. Girl alleges my boyfriend cheated on me.

2. Verified by a State

Makes sense to need to be verified…

2. Indicia of reliability

Indicia? Indicia means “distinctive marks: indication.” See Dictionary.com.  Not quite sure what that means, but indicia of reliability does not sound like a very high threshold.  Nothing like preponderance of the evidence or beyond a reasonable doubt.  Could be as low a threshold as I applied when the girl alleged my boyfriend cheated on me.

3. Comes from any source

Are you kidding me?? So, if I were a Medicaid provider, my ex-husband, out of spite and hatred, could call up Patrick Piggott over at Program Integrity (PI) and accuse me of Medicaid fraud…or the disgruntled employee I fired….or my next door neighbor who is angry about the bush I planted on his property…you get the point.

Why is it important what the definition is of “credible allegation of fraud?”

As a Medicaid attorney, I represent Medicaid providers (duh).  The point is that I have seen the dire consequences, first-hand, to many, many a Medicaid provider accused of “credible allegations of fraud.”  Here are a few, real-life examples (names have been changed to protect the innocent):

  • Provider Leroy is accused of “credible allegations of fraud.”  Leroy is placed on prepayment review and all Medicaid reimbursements are suspended.  Leroy provides residential services (the people he serves actually live in his home because of severe mental illnesses).  Without Medicaid reimbursements, Leroy cannot pay the mortgage, his staff’s hourly wages, or anything else.  He acquires a $200,000 loan to help him through, and the interest is high.  He truly thinks that he will get off prepayment review and save his company and his Medicaid recipients from not having a home or Medicaid mental health services.  After 6 months of barely sliding by, Leroy receives a Notice of Termination terminating his Medicaid contract with the State.  (It is important to note that the termination was based of a faulty audit by an inept contractor).  He declares bankruptcy and all the Medicaid recipients are discharged to the homes that could not care for them in the first place.  The “credible allegation of fraud?” It came from a disgruntled employee.
  • Provider Lacey receives a Tentative Notice of Overpayment (TNO) in the amount of over $2 million based on “credible allegations of fraud.”  Provider Lacey (after her initial heart attack) hires Attorney Clueless.  Clueless appeals the TNO and gets the overpayment amount reduced to $1.5 million.  Lacey does not have $1.5 million and asks Clueless to appeal again.  Clueless fails to appeal the overpayment by the appeal deadline, and Lacey gets a judgment entered against her and her company.  Lacey’s husband is sick and tired of hearing about the Medicaid audit and abandons her and her two children.  Lacey declares bankruptcy.  Lacey used to support herself and her family.  Now North Carolina does.  The “credible allegation of fraud?” Lacey’s husband (apparently he had issues WAY before he left).
  • Provider Larry receives notice from a managed care organization (MCO) terminating his Medicaid contract based on “credible allegations of fraud” and demanding a $700,000 recoupment.  Larry also hires Clueless.  Clueless files a lawsuit against the Department of Health and Human Services (DHHS) and the MCO.  Clueless did some homework and actually makes a good argument in court.  But by the time Clueless gets to court, 4 months has passed and Larry racked up $50,000 in legal fees.  Larry can’t pay the attorney fees.  Clueless withdraws as counsel.  Larry goes bankrupt.  The 400 Medicaid recipients that his company serviced do not receive the health care needed.  The “credible allegation of fraud?” One of his own recipients receiving substance abuse services in a state of incoherence while on crack cocaine.
  • Provider Lucy receives notice from the Medicaid Investigative Department  (MID) that she is under criminal investigation based on a “credible allegation of fraud.”  Lucy does not have enough money to hire an attorney, so she opts for the public defender, who knows nothing about Medicaid and is also named Clueless.  The public defender did not even review Lucy documentation because she did not understand the complex system of Medicaid.  Clueless provided poor representation, and Lucy was sentenced to 5 years in prison.  Lucy said, “I was the first in my family to get a PhD and the first to go to jail.”  The “credible allegation of fraud?”  Her local competitor.
  • 15 providers in New Mexico, based on “credible allegations of fraud,” have their Medicaid reimbursements suspended.  The 15 providers cannot pay staff, rent on buildings, and other bills.  The State of New Mexico brings in Arizona providers to replace the 15 Medicaid providers.  The Arizona provider takes over the 15 providers’ buildings, most staff and all consumers.  The 15 providers are out of business.  Without a trial.  Without even reviewing the evidence against them.  Based on a mere allegation of fraud, 15 providers go bankrupt…lose their careers…are unemployed… The “credible allegation of fraud?” Unknown.

Remember “credible allegation of fraud” is preliminary, and, at times, without any proof, yet the consequences are dire. 

Innocent until proven guilty is a bedrock principle in the American justice system.  Yet, innocent until proven guilty does not apply to Medicaid providers.  Our founding fathers created the concept of innocent until proven guilty.  While innocent until proven guilty is not explicitly codified in the Bill of Rights, the presumption of innocence is widely held to follow from the 5th, 6th, and 14th amendments. See also Coffin v. United States and In re Winship.

Here’s the problem….presumption of innocence only applies to criminal law.  Even when the consequences of a civil action is so monumental, so dire, so irreparable, the presumption of innocence does not apply.

So “credible allegation of fraud?”  It does not matter what the definition is.  The fact is that if ANYBODY alleges a “credible allegation of fraud” against you, you are guilty.  You are my boyfriend who never cheated on me, but a girl alleged that he did cheat. 

No evidence…You are GUILTY based on the ALLEGATION of fraud!

Credible?

More Financial Pressure on Hospitals By 2013′s Legislative Medicaid Budget

Representative David Price spoke as the Keynote Speaker at the North Carolina Society of Health Care Attorneys annual meeting yesterday morning.  Since Representative Price was actually up in Washington D.C. during the shutdown, it was very interesting to hear him speak.  His opinion, as one would expect from his ideology, was that the shutdown was idiotic and unnecessary.

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What I found interesting was how he described the relationships between congressmen and women today versus in the 90s.  Remember, he has represented NC in Washington for more than one decade.  He described the relationships, even across party lines, as more cordial in the 90s than today’s relationships.  I wonder why our legislative body has become more segregated.

In the afternoon session, Linwood Jones from the North Carolina Hospital Association spoke about recent legislative action.  This legislature was not good to hospitals.  As Linwood described the legislative session this year…”It was all about Medicaid.” (I know you were wondering how the NC Society of Health Care Attorneys annual meeting was going to be germane to Medicaid).  According to Mr. Jones, the Medicaid budget was the primary factor in almost all budget cuts.  And what entities get most of Medicaid funding?

Duh…Hospitals.  Hospitals are the biggest providers in the state, and, in some areas, the biggest employers.

Our Medicaid budget is approximately $13 billion.

Remember…36 million a day is what we spend on Medicaid in NC.

How much of that $13 billion Medicaid budget goes to hospitals?   According to Kaiser Family Foundation, 25.7% for inpatient care.  Or $3.341 billion annually.  Or $9.252 million a day!!

Including outpatient care?  38.7%  Or $5.031 billion annually.  Or $13.932 million a day!!

According to the handy-dandy Wikipedia website, North Carolina has 126 hospitals in 83 counties.  For those of you who never went to 6th grade in North Carolina, we have 100 counties in NC.  (In the 6th grade, if you grew up here, you learn all about North Carolina geography, which apparently didn’t stick, because I still get lost).

That is $13.932 million dollars a day going to 126 hospitals in NC.  That is a lot of money!!!

Does Medicaid matter to hospitals?

Heck, yes!! Remember, a hospital cannot turn anyone away, including Medicaid recipients and uninsured.  Add the fact that the mentally ill in NC are not getting medically necessary services because our managed care organizations (MCOs) have monetary incentives to NOT provide the expensive mental health services; PLUS the fact that Medicaid reimbursements are painfully low, which leads to many physicians not accepting Medicaid, and you get the sad sum of Medicaid recipients ending up in emergency rooms of hospitals.

Don Dalton, a spokesman for the Hospital Association, said that statewide about 46 percent of hospitals’ revenue comes from Medicaid. (See Rose Hoban’s article).

But, hospitals don’t make a huge profit.  Especially on Medicaid recipients.

On average, Medicaid reimburses hospitals 80% of the actual cost for hospital services.

But this year, the General Assembly created a budget in which the 80% will be reduced to 70%.

Medicaid reimbursements were already bad.  But now, the Medicaid reimbursements will be 10% worse.  Subtract 10% from the $13.932 million dollars a day…

This is not a good thing for hospitals nor Medicaid recipients.

When Representative Price was speaking, a woman raised her hand with a question/vignette.  She said that she and her friends had gotten on the health care exchange (Obamacare) (Healthcare.gov) website and “shopped” for health insurance.  She said that all the people who signed up for health care exchange (because it is mandated and there is a penalty for not having insurance) had their premiums increase anywhere from 300%-800%.  Although Rep. Price made a good point, that they all should have contacted Blue Cross Blue Shield (BCBS) and asked why BCBS dropped that particular insurance plan.  Nonetheless, the woman harped on the fact that Obama had promised, “You like your insurance? You can keep it! You like your doctor? You can keep him/her!” (I added the “her.”)

So, here we are…with low Medicaid reimbursements to begin with, high medical costs, and the General Assembly reducing the Medicaid rates for hospitals by 10%.

Incentive to accept Medicaid recipients?  I think not…but hospitals have no choice.

Physicians and other Medicaid providers have the choice as to whether to accept Medicaid patients, but hospitals?  No choice there.  Hospitals must accept Medicaid recipients.  Mandatory!!!

In my opinion, the very first step toward fixing the Medicaid system is RAISING Medicaid reimbursement rates.

Sound counterintuitive? Yes, I agree it sounds counterintuitive.  But think about Medicaid like this:

If you agree with me that Medicaid is an entitlement and that the Medicaid budget is way too high, but that all Medicaid recipients deserve quality health care…if you agree with all that…

And you also agree with me that it is drastically more expensive for Medicaid recipients to go to the emergency room (ER) for health issues that could be solved in a family physicians’ office…if you agree with all that…

Then we would save Medicaid dollars by increasing (drastically) the Medicaid reimbursements.  If doctors had a monetary incentive to accept Medicaid, then more doctors would accept Medicaid (Logic 101).  If more doctors accept Medicaid, then more Medicaid recipients have the ability to go see a doctor.  If more recipients have more office visits then ER visits drop.  If more unnecessary ER visits drop, then the State pays less money to the hospitals, which is an extremely higher rate (even with the 10% reduction) than a higher Medicaid reimbursement to physicians.  Cut the $13.932 million a day to hospitals, not by decreasing the reimbursement rate, but by fewer Medicaid recipient going to the ER…instead have the recipients receive quality care outside the hospital, thus saving money…

Get it?

By reducing the Medicaid reimbursements to hospitals, the legislature did decrease the Medicaid budget, but not in a way that intelligently attempts to fix the system.  The same amount of Medicaid recipients will be going to hospitals.  Since the hospitals cannot turn anyone away, reducing reimbursements to hospitals merely hurts the hospitals.

Want to decrease the Medicaid budget? Increase Medicaid reimbursements (drastically) to Medicaid providers.  More providers accepting Medicaid means more recipients receiving quality care and NOT checking into the ER….

Money saved intelligently.  Too bad the legislature didn’t ask my opinion prior to slashing Medicaid reimbursement rates.

Medicaid Alert: Arkansas Medicaid Going Private? Others To Follow? Should NC?

On September 27, 2013, the Centers for Medicare and Medicaid (CMS) approved Arkansas’ request to begin a Private Option demonstration.  Arkansas is the first state to receive approval for a “private option” as an alternative to Medicaid expansion.

Remember my “A Modest Proposal?”  Providing Medicaid recipients with private insurance….

Basically, Arkansas will accept federal money for Medicaid expansion, but instead of expanding Medicaid, Arkansas will purchase private insurance for these “newly eligible” Medicaid recipients, adults who make $15,280 or less.  Those individuals who earn up to 138 percent of the poverty line — or $15,415 per year — would purchase subsidized private insurance through the state’s insurance exchange.  From my understanding, the federal funds will cover the newly eligible recipients’ premiums and any co-pays above the co-pays set by statute.

Coverage is to begin January 2014, although enrollment opened today.

Arkansas estimates that 225,000 individuals will be eligible for the demonstration project.  Iowa has submitted a similar request for a “private option” program.  CMS has not yet ruled on Iowa’s request.  Likewise, Pennsylvania Governor Corbett submitted a request to CMS based of the Arkansas model.

It seems that some Republican governors are thinking outside the box to provide health care coverage for additional Medicaid recipients without merely providing the newly eligible simply a Medicaid card.  Because, remember, receiving health care is completely different from receiving health insurance.  Having insurance does not always allow Medicaid recipients to receive health care.  Obviously, many provider refuse to accept Medicaid.  But these newly eligible Medicaid recipients will have health care…with private insurance…just like I have…or you have….

And I ask you…What is more important….handing a person a Medicaid card?…Or providing that person with quality health care?

To Expand Or Not To Expand Medicaid: A Nationwide Draw?

Who likes a tie (or a draw) in sports? Not me!

In the last few years, I have noticed that, increasingly, parents of young children in sports are not keeping score.  You can go to a ten-year-old’s soccer game and ask the score, only to hear, “Oh, we don’t keep score.  We believe that everyone is a winner.”

Without stepping up onto my soapbox, let me just say I think “scoreless games” are as worthless as the nonexistent scores themselves.  I mean, come on, our country was founded on doing your best, working hard and receiving just compensation for hard work. (Not to mention that I grew up participating in competitive sports (gymnastics), and I truly believe that my participation in a competitive sport has contributed to my work ethic today).

Even Ashton Kutcher, during a recent Teen Choice Awards speech, surprised many with a speech about hard work and that opportunity looks a lot like hard work.

But, it is a different story when the teams actually keep score and the end result is still a draw.  When you keep score and the result is a draw, generally, that means that two teams with similar ability played and both played hard and both kept one another at bay.

Like the 1996 hockey game between Colorado Avalanche and Buffalo Sabres…both teams bragged it had the best goalie.  They played (and kept score) and recorded a shutout (0-0) tie game.  Apparently, both goalies were equally great.

Going to Medicaid expansion. That’s an old topic for North Carolina, right? But not for the U.S…

Yes, Governor McCrory nixed NC Medicaid expansion in NC.  Which, BTW, in my humble opinion, was a smart choice.  But, before everyone starts screaming cuss words at the computer screen, read my blog: Medicaid Expansion: Bad for the Poor.

But, remember, other states are still wrestling with the idea of Medicaid expansion.

Decisions are being made every day.  Just yesterday, Wyoming lawmakers announced that they were considering an alternative to Medicaid expansion. (As in, it would pretty much be Medicaid expansion, but named something else to avoid the appearance of concurring with the Affordable Care Act (ACA)).

So what is each state’s stance on Medicaid expansion?

Go figure….close to a tie.

Here is each state’s stance on Medicaid expansion as of July 26, 2013:

DB_medicaid_map

So the score is 28-22 (counting those states “leaning” as decided).  Not exactly a tie, but pretty close.

The tie is especially interesting when you consider that the “score” of Republican to Democrat governors in the U.S. is 30-20.

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The red states denote Republican governors; the blue states elected Democratic governors.

Although, remember, 18 states still have not decided whether to expand.  Which means, the score could be 46-4 or 10-40.  Whew….neither of those scores is a tie!

So what does this “close to a tie” in Medicaid expansion mean? Especially with the majority of governors nationwide affiliated as Republicans…Anything?

Maybe not.

But maybe.

But, at least, we are keeping score.  At least both teams are playing to the best of its ability.  In the end, there will be a winner.

As there should be.

Hopefully, in the end, the winners will be the Medicaid recipients. (One can hope).

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