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.”

High Court to Decide Whether Agencies Like CMS Can Flip-Flop Decisions

Do you know anyone who constantly changes his or her mind? Sometimes changing your mind can have drastic consequences. Think about it in the aspects of politics. Imagine that Obama announces that he was switching parties to become a Republican? This would be a huge decision with drastic consequences.

As crazy as it sounds, politicians do switch sides. The most recent switch-hitter that I can recall is Charlie Crist of Florida. Republican Crist served as Florida’s governor from 2007 to 2011. In December 2011, Crist officially changed his party affiliation to Democrat. More famously, Ronald Reagan began his political career as a Democrat. Hillary Clinton used to be a Republican. These changes had profound impact.

Now imagine that the Supreme Court rules one way, then overturns itself. There would be drastic consequences, and it does not happen often (actually the Supreme Court has overturned itself 10 times over the course of history).

Similarly, what if the Center for Medicare and Medicaid (CMS) issued a final ruling, caused millions of providers to change the way they bill Medicare or Medicaid, then changed its mind?

Can CMS change its mind after issuing a final ruling?

This is precisely what the Supreme Court will decide.

In Perez v. Mortg. Bankers Ass’n, U.S., No. 13-1041, petition filed 2/28/14, the federal government is asking the Supreme Court to review whether an agency altered its interpretation of a regulation without adhering to the Administrative Procedure Act (APA). In Perez, the Department of Labor (DOL) issued a reinterpretation of a prior ruling without obtaining notice and comment from the public.

If the Supreme Court allows the DOL to uphold its reinterpretation, this holding could have serious ramifications in the health care arena. Medicare and Medicaid are also highly regulated, like labor laws. IF DOL’s reinterpretation stands, then CMS could also issue redeterminations of prior rulings without notice and comment.

Allowing CMS to flip-flop decisions would impact providers who rely on CMS rulings in order for their practices to remain compliant.

As of now, the Supreme Court has not decided whether it will hear arguments on this case. But both petitions filed with the Supreme Court cite a circuit court split in opinions. It is more likely for the Supreme Court to grant review of a case when there is a split of opinion.

Shortage of Dentists Who Accept Medicaid: The Shortage Continues

Here is a repost from over a year ago.  But, recently, I met a orthodontist that accepts Medicaid.  He informed me that very, very few orthodontists accept Medicaid in North Carolina.  I was reminded of this post and realized that, sadly, nothing has changed.  In fact, if any change has occurred, I venture to say that less dentists accept Medicaid after the implementation of NCTracks.

 I’ve blogged before about the shortage of dentists for Medicaid recipients. Just see my post “Medicaid Expansion: BAD for the Poor” to read about Deamonte Driver’s story and why he died due to not being able to find a dentist accepting Medicaid. But, today and yesterday, I decided to conduct my own personal investigation. (remember, this was almost a year ago).

(First, let me assure you that this blog is not condemning dentists for not accepting Medicaid recipients. I am informatively (I know, not a word) pointing out the facts. We cannot expect dentists to accept Medicaid when the Medicaid reimbursements dentists receive cannot even cover their costs.)

I googled “Raleigh dentist” and called, randomly, 20 dentists listed. I said the same thing to each receptionist, “Hi. I was wondering whether you accept Medicaid.” Every office had a receptionist answer (no recording asking whether I wanted to continue in English or Spanish). Every office receptionist was very sorry, but the dental practice did not accept Medicaid. 0. Zero out of a random 20.

So I went on North Carolina Department Health and Human Services’ (DHHS) website for dental providers. I pulled up the dental providers, and, lo, and behold, 44 pages were full of dental providers for Medicaid recipients. Literally, 1,760 dental providers are listed (44 pages times 40 lines per page). (However, some practices are listed more than once, so this number is an approximation).

I thought, Wow. Tons of dentists in North Carolina accept Medicaid. Then I looked again. On the far right side of the chart, there is a space for whether the dental practice is accepting new clients. Roughly 1/2 of the listed dental providers are NOT accepting new Medicaid clients.

I called a few of the dentists in Wake County accepting Medicaid. Again, I asked whether they accepted Medicaid. One stated, “Yes, but not at the moment.” Another said, “Yes, but only for children 21 and under.” Another gave a blanket, “Yes.

So that’s Wake County…what about more rural counties?

I called a few dentists in Union County. Two practices did not answer. One dental practice answered and gave me a “Yes.” According to the DHHS chart of Medicaid-accepting dental providers, 20 dentists in Union County accept Medicaid. 4 of which are not accepting new clients and one dental practice is listed as the health department. There are no orthodontists in Union County accepting Medicaid.

The phone numbers for two dental providers in Swain County were changed or disconnected. There are only 3 dental providers in Swain County. There are no orthodontists in Swain County.

There is only 1 dental provider accepting Medicaid in Pamlico County. According to the DHHS chart, the one dental provider is not accepting new patients. There are no orthodontists in Pamlico County.

Polk County lists 3 dentists accepting Medicaid, but not one of the dentists are accepting new clients. There are no orthodontists in Polk County.

Mitchell County has 4 dental providers acccepting Medicaid. But 3 of those dental practices are not accepting new clients. There are no orthodontists in Mitchell County

In Clay County, the only dental practice accepting Medicaid recipients is the health department.

In Ashe County, there are 3 dentists listed that will accept Medicaid. Only 2 are accepting new clients, one of which is the health department. There are no orthodontists in Ashe County.

In Alamance County, there are 4 dentists listed by DHHS who will accept Medicaid patients. The first one I called (a orthodontist) told me that they accepted Medicaid patients only from certain general dentists. The second one was not accepting new patients. The third one (also an orthodontist) informed me that Medicaid does not cover orthodontia services for Medicaid recipients over 21 (I must sound old!!!) The fourth dental practice’s voicemail informed me that the office is only open Wednesdays and Thursdays for limited times. Of the 4 dental practices accepting Medicaid, 3 were orthodontists, one did not accept new clients. The only general dentist (pediatric) only practiced in the local office two days a week.

Shortage of dentists accepting Medicaid? You decide.

Carolina Access, Medicaid and Health Choice: What Are These Programs and Who Qualifies?

Medicaid, Carolina Access, and Health Choice.  Three completely different, and, somewhat, independent programs.  What are the differences?  Who is eligible for what? 

I am reminded of the Monty Hall problem that I learned in a college Statistics class (which, BTW, was my most-hated class in college).  The Monty Hall problem is a brainteaser, a hypothetical, statistical mindbender and it goes like this:

Suppose you’re on a game show, and you’re given the choice of three doors: Behind one door is a car; behind the others, goats. You pick a door, say No. 1, and the host, who knows what’s behind the doors, opens another door, say No. 3, which has a goat. He then says to you, “Do you want to pick door No. 2?” Is it to your advantage to switch your choice?

I am not alluding that Medicaid, Carolina Access, and Health Choice are the equivalent of picking a prize from behind three doors.  Obviously, not.  But when you don’t know the difference between the programs or which program could benefit you, it can seem as if you are just picking a prize behind three doors.  Or throwing darts at a dartboard of choices.  Without information, knowing which program can benefit you can be a mystery. 

In this blog, I would like to take the mystique out of Medicaid, Carolina Access and Health Choice.  So that you know which program, if any, could be applicable to you, a relative, friend, or, even, a client.

First, door number 1: Medicaid is health insurance for low-income families and individuals who are eligible.  Depending on the category for which you are applying, the income cap differs.  For a complete rundown of Medicaid eligibility, click here.

Medicaid is a highly regulated program, both federally and on the state level.  But no federal statutes speak to how Medicaid recipients can choose their health care physicians or a long-term treatment plan.

Hence, door number 2:

Carolina Access (CA).  CA is an option for comprehensive managed care that directs Medicaid recipients to primary-care doctors or clinics that can best serve all their needs. CA helps find Medicaid recipients “health care homes.”  With CA, recipients also have 24-hour access to medical advice and emergency treatment. 

If you are eligible for Medicaid, you may be eligible for CA, but not always.

CA began as a pilot program within 5 counties in 1991 and went statewide in 1998.

Medicaid recipients are enrolled in CCNC/CA by the Department of Social Services located in the county in which they reside. Enrollment can be done at anytime during the recipient’s eligibility period; however, it is required at application or review for continuation of eligibility. The program aid category of eligibility determines if a recipient is mandatory, optional, or ineligible for enrollment in CCNC.  See NC DMA website.

Below is a chart of eligibility for CA:

MANDATORY OPTIONAL INELIGIBLE
AAF (Work First Family Assistance) HSF (Medicaid Non-Title  IVE Foster Care Children) MQB (Medicare Qualified Beneficiaries)
MAB (Aid to the Blind) IAS (Medicaid Title IVE Adoption Subsidy Foster Care Children) MRF (Medicaid for Refugees)
MAD (Aid to the Disabled) MPW (Medicaid for Pregnant Women) RRF (Refugee Assistance
MAF (Medicaid for Families and Children) MAA (Medicaid for the Aged – over 65 years of age) SAA (Special Assistance to the Aged)
MIC (Medicaid for Infants and Children)    
MSB (Special Assistance to the Blind)    
SAD (Special Assistance to the Disabled)

According to the December 2013 CCNC/CA Enrollment Report, there were 1.58+ Medicaid enrollees throughout North Carolina.  1.47+ of those Medicaid enrollees were eligible for CA.  1.35+ actually enrolled in CA at a 92% realization rate.

And now we come to Door #3:

Because Medicaid only covers those with low-incomes and many people who are not eligible for Medicaid still cannot afford insurance, NC has created door number three: Health Choice.  Health Choice only covers children.  Eligibility for Health Choice is defined by NC statute.  According to NC Gen. Stat. 108A-70.21, children are eligible for Health Choice if they are:

  • Between the ages of 6 through 18;
  • Ineligible for Medicaid, Medicare, or other federal government-sponsored health insurance;
  • Uninsured;
  • Live in a family whose family income is above one hundred thirty-three percent (133%) through two hundred percent (200%) of the federal poverty level;
  • A resident of this State and eligible under federal law; and
  • Someone who has paid the Program enrollment fee required under this Part.

So….there it is….the three programs, Medicaid, Health Choice and Carolina Access, somewhat de-mystified. 

I understand that I cannot cover all aspects of all three programs in this blog, but, hopefully, this helps a bit.  So it does not feel like you are picking randomly a prize from 3 doors.

How EPSDT Allows Medicaid Recipients Under the Age of 21 To Receive More Services Than Covered By NC State Plan

EPSDT. What in the heck is EPSDT?

EPSDT is an acronym for the “Early and Periodic Screening, Diagnosis, and Treatment (EPSDT).” It only applies to Medicaid beneficiaries under the age of 21. As in, if you are 21, EPSDT does not apply to you. The point of EPSDT is to allow beneficiaries under the age of 21 to receive medically necessary services not normally allowed by the NC Medicaid State Plan. (These beneficiaries under the age of 21 I will call “children” for the sake of this blog, despite 18+ being a legal adult).

The definition of each part of the acronym is below:

Early:……. Assessing and identifying problems early
Periodic:…… Checking children’s health at periodic, age-appropriate intervals
Screening:…. Providing physical, mental, developmental, dental, hearing, vision, and other screening tests to detect potential problems
Diagnostic:…. Performing diagnostic tests to follow-up when a risk is identified, and
Treatment:…. Control, correct or reduce health problems found.

Federal Medicaid law at 42 U.S.C.§ 1396d(r) [1905(r) of the Social Security Act] requires state Medicaid programs to provide EPSDT for beneficiaries under 21 years of age. Within the scope of EPSDT benefits under the federal Medicaid law, states are required to cover any service that is medically necessary “to correct or ameliorate a defect, physical or mental illness, or a condition identified by screening,” whether or not the service is covered under the North Carolina State Medicaid Plan.

The services covered under EPSDT are limited to those within the scope of the category of services listed in the federal law at 42 U.S.C. § 1396d (a) [1905(a) of the Social Security Act].

For example, EPSDT will not cover, nor is it required to cover, purely cosmetic or experimental treatments.

Again, EPSDT allows for exceptions to Medicaid policies for beneficiaries under the age of 21. For example, if the DMA clinical policy for dental procedures does not cover a certain procedure, if the dentist determines that the procedure is medically necessary for a beneficiary under the age of 21, then the dentist can request prior approval under EPSDT simply by filling out a “non-covered services form” along with the other supporting documentation to establish medical necessity. More likely than not, the “non-covered procedure” would be approved.

Medical necessity is an interesting term. Medical necessity is not defined by statute. The American Medical Association (AMA) defines medical necessity as:

“Health care services or products that a prudent physician would provide to a patient for the purpose of preventing, diagnosing, treating or rehabilitating an illness, injury, disease or its associated symptoms, impairments or functional limitations in a manner that is: (1) in accordance with generally accepted standards of medical practice; (2) clinically appropriate in terms of type, frequency, extent, site and duration; and (3) not primarily for the convenience of the patient, physician, or other health care provider.”

But, legally, the courts have construed medical necessity broadly when it comes to EPSDT. As in, generally speaking, if a doctor will testify that a procedure or service is medically necessary, then, generally speaking, a judge will accept the medical necessity of the procedure or service.

It seems as though I am degrading the intelligence of the judges that take the face value testimony of the doctors. But I am not.

Judges, like I, are not doctors. We do not have the benefit of a medical education. I say benefit because any education is a benefit, in my opinion.

It would be difficult for anyone who is not a doctor to disagree with the testimony of a physician testifying to medical necessity. I mean, unless the person stayed in a Holiday Inn Express the night before. (I know…bad joke).

Some courts, however, have ruled that the decision as to whether a procedure is medically necessary must be a joint effort by the state and the treating physician. Obviously, for courts that follow the “joint decision for medical necessity” holdings, less procedures would be allowed under EPSDT because, more likely than not, the state will disagree with a treating physician (I say this only from my own experience representing the state when the state disagreed with EPSDT treatments despite the treating physician testifying that the procedure was medically necessary).

For example, the 11th Circuit has held that both the state and the treating physician have a role in determining whether a procedure or treatment is medically necessary to correct or ameliorate a medical condition. The 11th circuit disagreed with the Northern District of Georgia’s determination that the state MUST provide the amount of services which the treating physician dreamed necessary. Moore v. Medows, No. 08-13926, 2009 WL 1099133 (11th Cir. Apr. 24, 2009).

Regardless, in practice, EPSDT is interpreted broadly. A long, long time ago, I worked at the Attorneys’ Generals office. A mother requested hyperbaric oxygen therapy (HBOT) for her autistic children (and I had to oppose her request because that was my job).

For those of you who do not know what HBOT is (I sure didn’t know what HBOT is prior to this particular case)…

“Hyperbaric Oxygen Therapy (HBOT) is the use of high pressure oxygen as a drug to treat basic pathophysiologic processes and their diseases. HBOT has acute and chronic drug effects. Acutely, HBOT has been proven to be the most powerful inhibitor of reperfusion injury, which is the injury that occurs to tissue deprived of blood supply when blood flow is resumed. This is thought to be one of the primary mechanisms of hyperbaric oxygen therapy effects in acute global ischemia, anoxia, and coma. Chronically, HBOT acts as a signal inducer of DNA to effect trophic (growth) tissue changes.” See http://www.hbot.com/hbot.

I went and saw a hyperbaric oxygen treatment chamber in preparation of my case. It’s pretty intimidating. It is a large chamber made of thick metal. It looks like you could get inside, have it submerged under the ocean, and explore. It appears similar to a submarine. And, interestingly, it is most often used for divers who get the bends.

It is highly controversial as to whether HBOT cures, remedies or ameliorates autistic symptoms. I had two experts testifying that HBOT was experimental, and, therefore, not covered by Medicaid, even with EPSDT. (Remember, back then I was at the AG’s office).

Yet, despite the fact that HBOT was still controversial as to whether it ameliorates the symptoms of autism, the Administrative Law Judge (ALJ) used the EPSDT doctrine to rule that the mother’s children could receive HBOT and Medicaid must pay for the services.

That is the power of EPSDT. HBOT was clearly not covered by Medicaid for the purpose of ameliorating symptoms of autism. But, for the children named in the Petition who were under 21, Medicaid paid nonetheless.

HBOT allows beneficiaries under the age of 21 to receive medically necessary services that would not normally be allowed under the North Carolina Medicaid State Plan.

Importantly, EPSDT provides for private rights of action under 1983. At least all the federal circuit court of appeals have held such.

Oh, and, BTW, NCTracks will soon also be in charge of EPSDT determinations.

Congressman McDermott Calls on Sec. Sebelius to Fix the Medicare Appeal Purgatory

Throughout my career I have seen more people confuse Medicare and Medicaid than any other two items in my line of work.  If I am about to give a presentation on Medicaid, without question, someone will comment, “Oh, that’s important!  We will all be on Medicaid someday.”  Hmmmm? Really? (I hope not).

It’s confusing. I get it.  They sound the same and both are heavily regulated with esoteric rules and regulations.

For the record, MediCARE covers those who qualify for Medicare and are 65 years of age or older.  MediCAID serves low-income parents, children, seniors, and people with disabilities. 

By providers, I am asked frequently, “What is the difference between a Medicaid audit appeal and a Medicare audit appeal?”

The easy “Audit 101″ answer  is that Medicaid audit appeals are quicker (although in the legal world, nothing is truly fast) than Medicare audits and that the Medicaid administrative appeal process is easier (or has fewer steps) than the Medicare appeal process.

In Medicaid you have an informal appeal, an appeal to the Office of Administrative Hearings (OAH), and, if you are so inclined, judicial review to the Superior Courts.  Obviously you can appeal the judicial review, but most appeals stop at the OAH level.

So, with Medicaid audit appeals, you have 2 levels…maybe 3.

In Medicare audits appeals, there are 5 levels.  You have more of a Dante-ish order of events.

In the “Divine Comedy,” Dante writes of three levels of afterlife: (1) Inferno (2) Purgatorio; and (3) Paradiso.

If Dante stopped at those 3 levels, the “Divine Comedy” would be more similar to Medicaid audit appeals, not Medicare audit appeals.  But Dante does not stop at 3 levels.

Purgatory, which is the place that the human soul must purge its sins and climb up to be worthy of Heaven, is divided into three sections: (1) Antepurgatory; (2) Purgatory proper; and (3) the Earthly Paradise. (I am giving the Cliff’s Notes version for the purpose of this blog.  Obviously, there were other mountains symbolizing the 7 deadly sins and other layers, but I will leave that for English class).

In recent times, Purgatory has come to mean a state of suffering or torment that is meant to be temporary.

Regardless, the “Divine Comedy” and its multi-layers to achieve Paradiso is more akin to the Medicare appeal audit process.

Here are the levels in a Medicare audit appeal process:

1. Redetermination

2. Reconsideration

(Purgatory)

3. Hearing before an Administrative Law Judge (ALJ)

4. Review by the Appeals Council

5. Judicial Review

Nowadays many providers undergoing Medicare audits are getting stuck waiting for #3 to occur.  Purgatory.

So long is the hold up before step #3 that Congressman Jim McDermott, 7th District, Washington, wrote a letter to Secretary Kathleen Sebelius expressing concerns.

In a letter dated March 18, 2014, Congressman McDermott writes that he is concerned with the backlog of appeals pending in the Office of Medicare Hearings and Appeals (OMHA).

According to Congressman McDermott, 357,000 Medicare appeals are pending at OMHA.  If OMHA decided to set a one-year deadline to hear the pending actions and not counting new actions that would be filed, OMHA would have to preside over 1,027.4 hearings a day, including weekends and holidays.

For as long as I know, OMHA has expedited Medicare recipients appeals.  However, while Congressman McDermott commends OMHA for the expeditions, he states that the expeditions are not fast enough, even for Medicare recipients.

Congressman McDermott makes several suggestions as to how to decrease the current workload on OMHA.

First, he asks that the “two midnights policy” not be implemented.  Instead, he suggests to revamp the recovery audit contractor (RAC) program.  Congressman McDermott states that too many issues are still not resolved for the Policy to be implemented and that the implementation will only add to OMHA’s workload.

Second, Congressman McDermott suggests more accountability for the RACs.  He states that there is no associated penalty if a RAC collects money from a provider and the decision is overturned on appeal.

To this suggestion, I say, “Bravo, Congressman McDermott!”  My suggestion is that the RACs to pay the provider’s attorneys’ fees if overturned on appeal.  It seems only fair that the provider not have to pay legal fees if the provider shows that the RAC was incorrect in its assessment.

Thirdly, Congressman McDermott suggests to ensure the newly instated pause  on document requests corrects the problems.  CMS has recognized inherent problems with the RAC program and has issued a pause of document requests.  Well, Congressman McDermott says make sure you fix the problem before lifting the pause.  Logical.

Without question, the backlog at OMHA needs to be addressed.  Some Medicare providers have complained of not having their cases heard for years.  Imagine waiting to be heard in front of a judge for years….not knowing…

It is hard enough for providers to go through a Medicare audit.  Much less appeal and then…………………………………………….wait in Purgatory.

The NC MCOs: Jurisdiction Issues and Possible Unenforceable Contract Clauses with Medicaid Providers

According to NC Superior Court, OAH (and I) has (have) been right all along…OAH does have jurisdiction over the MCOs.  And you cannot contract away protections allowable by statute.

Before I went to law school, I do not recall ever thinking about the word “jurisdiction.”  Maybe in an episode of Law and Order I would hear the word thrown around, but I certainly was not well-versed in its meaning. While I was in law school, the word “jurisdiction” cropped up incessantly.

“Jurisdiction” is extremely important to North Carolina Medicaid providers.  Jurisdiction, in the most basic terms, means in which court to bring the lawsuit or appeal of an adverse determination.

In this blog, I am mostly referring to terminations/refusals to contract with providers by the managed care organizations (MCOs), which manage behavioral health, developmental disability, and substance abuse services for North Carolina. Recently, there have been a slew of providers terminated or told that they would not receive a renewed contract to provide Medicaid services. The MCOs tell the providers that, per contract, the providers have no rights to continued participation in the Medicaid system.

The MCOs also tell the providers that the providers cannot appeal at OAH… That the providers have no recourse… That the providers’ contracts are terminable at will (at the MCO’s will)…. I have been arguing all along that this is simply not true. And now a Superior Court decision sides with me.

The MCO have been arguing in every case that OAH does not have jurisdiction over the actions of the MCOs.  The MCOs have pointed to NC Gen. Stat. 108D and Session Law 2013-397, which amends NC Gen. Stat. 150B-23 to read:

“Solely and only for the purposes of contested cases commenced as Medicaid managed care enrollee appeals under Chapter 108D of the General Statutes, a LME/MCO is considered an agency as defined in G.S. 150B-2(1a). The LME/MCO shall not be considered an agency for any other purpose.”

A termination or denial to participate in the Medicaid program is an adverse determination. Adverse determination is defined in NC Gen. Stat. 108C-2 as, “A final decision by the Department to deny, terminate, suspend, reduce, or recoup a Medicaid payment or to deny, terminate, or suspend a provider’s or applicant’s participation in the Medical Assistance Program.”

The Department is defined as, “The North Carolina Department of Health and Human Services, its legally authorized agents, contractors, or vendors who acting within the scope of their authorized activities, assess, authorize, manage, review, audit, monitor, or provide services pursuant to Title XIX or XXI of the Social Security Act, the North Carolina State Plan of Medical Assistance, the North Carolina State Plan of the Health Insurance Program for Children, or any waivers of the federal Medicaid Act granted by the United States Department of Health and Human Services.”

Obviously, per statute, any entity that is acting on behalf of DHHS would be considered the “Department.” Any adverse act by any entity acting on behalf of DHHS, including terminating a provider’s participation in the Medical Assistance Program is considered an adverse determination.

The MCOs have been arguing that the above-referenced amendment to 150B means that the MCOs are not agents of the state; therefore, OAH has no jurisdiction over them.

Until March 7, 2014, these issues have been argued within OAH and no Superior Court judge had ruled on the issue.  Most of the Administrative Law Judges (ALJ), even without Superior Court’s guidance, has, in my opinion, correctly concluded that OAH does have jurisdiction over the MCOs.  A couple of the ALJs vacillate, but without clear guidance, it is to be expected.

On or about March 7, 2014, the Honorable Donald W. Stephens, Senior Resident Superior Court Judge ruled that OAH does have jurisdiction over the MCOsYelverton’s Enrichment Services, Inc. v. PBH, as legally authorized contractor of and agent for NC Department of Health and Human Services (DHHS).

If these MCOs are acting on DHHS’ behalf in managing the behavioral health Medicaid services, it would be illogical for OAH to NOT have jurisdiction over the MCOs.

In the Yelverton Order, Judge Stephens writes, “OAH did not err or exceed its statutory authority in determining that it had jurisdiction over Yelverton’s contested case.”

The Order also states that the MCO, in this case, PBH (now Cardinal Innovations), agreed that only DHHS had the authority to terminate provider enrollment. The MCO argued that, while only DHHS can terminate provider enrollment, the MCOs do have the authority “to terminate the participation of the provider in the Medical Assistance Program.”

Talk about splitting hairs! DHHS can terminate the enrollment, but the MCO can terminate the participation? If you cannot participate, what is the point of your enrollment?

Judge Stephens did not buy the MCO’s argument.

On March 7, 2014, Judge Stephens upheld ALJ Donald Overby’s Decision that OAH has jurisdiction over the MCOs for terminating provider contracts.

I anticipate that the MCOs will argue in future cases that the Yelverton case was filed prior to Session Law 2013-397, so Yelverton does not apply to post-Session Law 2013-397 fillings. However, I find this argument also without merit. The Yelverton Order expressly contemplates NC Gen. Stat. 108D and House Bill 320.

House Bill 320 was the bill contemplated by the General Assembly in the last legislative session that expressly stated that OAH does not have jurisdiction over the MCOs. It did not pass.

In Yelverton, the MCO argued that the MCO contracts with the providers allow the MCO to terminate without cause and without providing a reason.

Judge Stephens notes that the General Assembly did not pass House Bill 320. The Yelverton Order further states that no matter what the contracts between the providers and the MCOs states, “[c]ontract provisions cannot override or negate the protections provided under North Carolina law, specifically appeal rights set forth in NC Gen. Stat. 108C.”

Will the MCO appeal? That is the million dollar question…

The NC State Plan, Its Importance, and How Can We Keep Up With All the Changes??

I am constantly amazed at the amount of knowledge that I do not know.  And how quickly the knowledge I have becomes obsolete due to changes.  To quote Lewis Carroll’s “Alice and Wonderland,” “Why, sometimes I’ve believed as many as six impossible things before breakfast.” My other favorite quote series from Lewis Carroll is the following scene:

“But I don’t want to go among mad people,” Alice remarked.
“Oh, you can’t help that,” said the Cat: “we’re all mad here. I’m mad. You’re mad.”
“How do you know I’m mad?” said Alice.
“You must be,” said the Cat, or you wouldn’t have come here.”

So too, must I be mad, I think, at times, for dealing with Medicaid and Medicare law.  The statutes and regulations are vast and ever-changing.  You can easily miss a policy change that was disseminated by an update posted on the web.  But, I am a lawyer…I read a lot.  But providers are held accountable as well for every revision and every update.

Just when you think you understand the State Plan, the Department of Health and Human Service (DHHS) asks the Center for Medicare and Medicaid Services (CMS) for an amendment.

In this blog, I am going to discuss 2 issues.  (1) What is the State Plan and why is it important; and (2) how can providers stay abreast of the ever-changing Medicare/caid world and policies.

(1) Our State Plan

What is our State Plan in Medicaid? Is it law? Guidance? Does NC have to follow the State Plan? Can NC amend the State Plan?

These are all good questions.

The State Plan is a contract between North Carolina and the federal government describing how NC will administer its State Plan, i.e., Medicaid program.  The State Plan describes who can be covered by Medicaid, what services are available, and, basically, assures the federal government that we will abide by certain rules and regulations.  NC must follow the State Plan or risk losing federal funding for Medicaid, which would be BAD.

Quite often, the Department of Health and Human Services (DHHS) will issue a State Plan Amendment (SPA) to the Centers for Medicare and Medicaid Services (CMS).  DHHS has to post all proposed amendments on its website “10 Day Posting for Submission to CMS.”  This internet site should be in your “favorites,” and you should check it regularly.

For example, February 27th, DHHS asked to reduce Medicaid reimbursements methodologies for Chiropractic Services, Podiatry Services and Optometry Services to 97% of the July 1, 2013, rate, effective January 1, 2014 (yes, retroactively).

Just in 2014, there have been approximately 10 SPA requests.  So, these SPAs are relatively common.

So, question #2…how can you keep up?

(2) Keeping abreast of all changes

As much as I would love to throw my computer out the window (I am on the 16th floor) and watch it crash, computers and technology can be very helpful.  And technology makes it easy for everyone, even busy health care providers, to stay current on changes, amendments, and revisions to Medicaid/care policies and law.

Here is the secret: (shhhhhhhhh!!)

Google Alerts.

If you want to keep current on NCTracks, all you have to do is set a Google alert with the search term “NCTracks,” and you will receive daily email alerts on all internet articles on NCTracks.  It is that easy.

So how do you set up a Google Alert?  I have drafted a set by step process, otherwise entitled “Google Alerts for Dummies.”

1. Go to Google.

2. At the top of the page you will see the words: “You,” “Search,” “Images,” “Maps,” “Play,” “Youtube,” “News,” “Gmail,” and “More.”  Click on “More.”

3. When the box drops, at the very bottom, you will see “even more.”  Click on “even more.”

4. Scroll down to specialized search and click on “Alerts.”

5. Type in whatever search term you like, such as “Medicaid,” or “Knicole Emanuel.”

6. Decide how often you want to be alerted and your email address.

You will now be alerted about your topic.  See? Easy!!

Now, because of this blog, you have learned two or more impossible things before lunch.

Documentary on New Mexico Behavioral Health: Breaking Bonds: The Shutdown of New Mexico’s Behavioral Health Care Providers

http://www.youtube.com/watch?v=wUSSR_mJYdU&feature=youtu.be

 

BH Documentary

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