Knicole Emanuel: Panel Discussion – David Is To Goliath As NC Behavioral Health Care Providers Are To MCOs
Isn’t that analogy apropos? (And it’s not mine…its Benchmarks’)
I will be sitting on a panel today in Raleigh, NC. See below.
A wonderful association, Benchmarks, is hosting a panel discussion for behavioral health care providers. While it is meant for smaller providers, in my own humble opinion, all behavioral health care providers would benefit from this panel discussion.
Senior Counsel, Robert Shaw, and I will be sitting on the panel…with managed care organizations (MCO) representatives. It is without question that I have not been a big fan of the MCOs. If I were to suggest otherwise, I believe that my blog followers would scoff. However, I am interested in hearing these MCO representatives’ side of the argument.
Will these MCO reps merely parrot? Or will they truly engage in worthwhile conversations to understand what it is like for a behavioral health care provider in NC today?
Feel free to join the discussion at 12:30-2:30. Below is the Evite: 3801 Hillsborough St.
New State Auditor report investigates the Office of Medicaid Management Information Systems Services (OMMISS) within the North Carolina Department of Health and Human Services (DHHS).
With DHHS’ emphasis on detecting health care providers’ fraud, waste, and abuse (FWA) across the state, it seems ironic that its own agency is deemed guilty of wastefulness by our State Auditor. What’s that about glass houses……??
What exactly does OMMISS do? Well, for one, OMMISS works with Computer Sciences Corporation (CSC) regarding NCTracks. We all know how wonderfully NCTracks has operated since inception….See blog. And blog.
State Auditor Beth Wood finds:
At least $1.6 million wasted through excessive wages and commissions, unjustified overtime, and
holiday pay to ineligible employees
OMMISS Director engaged in or allowed nepotism
OMMISS Director received unauthorized compensatory time that may result in inflated retirement
Reports to General Assembly omitted at least $260,000 of overtime and compensatory time
Lack of adequate oversight of OMMISS despite findings in prior audit reports
Attorney/Client Privilege: Its Importance to Health Care Providers, and TIPS to Avoid Potential Pitfalls as to Former Employees
This blog is intended to provide TIPS to health care providers who have any amount of attrition with staff members and why these TIPS as to attorney/client privilege are so important.
First, I’d like to say, for the past few weeks, I have been moving homes and firms, concurrently. Add in a trial or two into the mix and I haven’t been able to blog as often. But I’m fairly moved in now (to both) and have one of the trials mostly wrapped up.
The idea for this blog, in particular, actually came to me while Robert Shaw, Senior Counsel, and I were Santa Fe, New Mexico for a trial.
While preparing the witnesses for trial, I re-realized an important aspect of attorney/client privilege that is vital to health care providers if there is any attrition in their staff.
I say “re-realized” because I already knew the importance of attorney/client privilege, but I realized the importance for health care providers to understand its importance, as well…hence, this blog.
If, for whatever reason, your company is forced to lay off staff or, even, if you have staff voluntarily leave your office, you need to read the entirety of this blog and pay special attention to the TIPS at the bottom.
What if you need to rely on that former employee for testimony in a hearing?
For example, you are CEO of a small or large health care provider company and your Medical Director or Compliance Director leaves your employment and you need the former employee to testify in the future. Your former employee and your attorney will not be protected by attorney/client privilege.
You may be thinking…so what?
But attorney/client privilege is key in trial.
Let me give you an illustrative example:
You own a dental practice and accept Medicaid. Lucy is your office manager. She oversees the Medicaid billing, ensures regulatory compliance, and deals with denials that come from NCTracks. She also enters the data into NCTracks. You, as the dentist, provide dental services, but you have little to do with what Lucy does. You trust her and she does her job well.
DHHS via Program Integrity conducts an audit and determines that you owe $750,000 in alleged overpayments. Maybe the auditor didn’t know that the notation “cavies” means cavities and dinged you for billing for filling a cavity because the auditor could not discern from the service note that a cavity was actually filled. Or, maybe you coded the service for scraping the wall of a gingival pocket, and the auditor did not understand what “curettage” is in the service note.
Regardless, you receive a Notice of Overpayment on May 4, 2015. On May 7, 2015, Lucy tells you that she is having her first baby and wants to be stay at home mother. You congratulate her and begin your search for another office manager. You end up hiring Bill.
By the time that you need to get ready to defend your $750,000 overpayment with your attorney, Lucy has given birth to Annie and hasn’t worked for you for over a year.
But your attorney, in order to defend the overpayment, will need Lucy to testify at court. Before a witness testifies in court, your attorney must meet with him or her to prepare the witness for direct examination and cross examination by opposing counsel. (If your attorney does not, instruct him or her to do so).
When I am in a situation such as the one I have outlined above. I am extremely careful. Because there is no attorney/client privilege between “Lucy” and me because she is a former employee, I am very precise in my prep. For example, I would never discuss legal strategy with Lucy. I would never show privileged information; I would never try to “lead” Lucy’s opinion. Leading a witness’s opinion could come across like, “Lucy, If I ask you on the stand whether your opinion is that curettage means scraping a gingival pocket, you would agree, correct?” Instead, I would ask, “Lucy, what do you understand curettage to mean and how would you normally code the procedure?”
Any attorney worth his or her salt knows that attorney/client privilege does not attach to a former employee.
Why does that matter?
Any opposing attorney worth his or her salt will cross exam Lucy as to every detail possible involving the meeting between Lucy and me. And I mean every detail.
Q: “You met with Ms. Emanuel in preparation for this meeting, correct?”
Q: “When exactly was that?”
A: “Two weeks ago.”
Q: “What documents did Ms. Emanuel show you?”
A: “She showed me my direct examination.”
Q: “What do you mean? A hard copy of the questions that you would be asked?”
Q: “Ms. Emanuel, I expect that you have no problem providing me with a copy of what you showed Lucy?”
Me: “Not at all.”
Boom! By Lucy testifying that I showed her my hard copy of my direct examination questions, opposing counsel is entitled to review my draft questions along with any notes I may have notated on that hard copy of Lucy’s direct testimony. What happens if I have privileged notes contained within my questions? My attorney notes contained within the questions are now discoverable by the other side.
[BTW: I would never show Lucy my actual list of questions, unless I fully anticipated giving my list to opposing counsel.]
But you can see the potential pitfalls. Anything discussed or shown to Lucy by your counsel will be discoverable by opposing counsel. What if your counsel, without thinking, tells Lucy that he or she thinks this is a weak case? Or tells Lucy that he or she hopes the other side doesn’t pick up on…..X?
Even if the attorney prepping Lucy states something disparaging about opposing counsel, or God forbid, the judge, those remarks are discoverable and Lucy must testify to those comments on the stand.
On one occasion, I actually had opposing counsel question my witness about our conversation during a 10 minute break, during which I was smart enough not to speak about the case. My witness answered, “We discussed that I think you are b$#@!” But counsel’s question was valid and allowable. Because just as easily, during the break, I could have said, if I were not worth my salt, “Lucy, I did not like how you answered that question. You need to say…..X.”
Judges do not look favorable on coached testimony.
As a health care provider, what measures can you take that if you are forced to call former employees as witnesses, you are poised for the best result?
1. Try to maintain a cordial relationship with former employees.
I know this can be difficult as every provider needs to terminate staff or has disgruntled employees. But, even if you are firing staff, try to do so in a professional, amicable manner. Explain that it is a business decision, not personal (regardless the reason). Give the soon-to-be-fired employee notice, such as 30 days, if possible. If you would recommend the employee to a colleague, let the employee know and to whom. These small steps can help your future in case of trial.
2. Re-hire the employee.
In my opinion, this avenue has an aura of attempted deceit, and I do not recommend this route unless you are re-hiring the employee in good faith. For example, if you truly did not want to fire the staff member and you genuinely could use that person back in your office, or, if, in the case of Lucy, she decides that she wants to come back to work of her own volition and you still have the need.
An employee is protected by attorney/client privilege, generally.
3. Be knowledgeable or hire a knowledgeable attorney.
If you are concerned that your attorney may disclose something otherwise confidential in witness prep of a former employee, have a lengthy discussion with your attorney prior to the preparation session. Sit in with your attorney during the prep of the former attorney.
Along the same lines as above, come to an understanding with your attorney which documents may be considered “hot docs” and essential to the case, and, which should not be discussed with a former employee at all.
4. Test the waters.
Prior to your attorney contacting Lucy, call Lucy yourself. Have a chat. Catch up. Ask Lucy whether she is willing to testify on your behalf. If Lucy starts cussing you out, you may want to think of alternative witnesses. If there are no alternative witnesses, you may want to discuss with your attorney whether an affidavit or deposition could substitute for Lucy’s testimony at trial.
5. Pay for Lucy’s time
There is nothing wrong or unethical about compensating Lucy for her trial preparation and appearance at trial. Obviously, this compensation is discoverable by opposing counsel and questions can be asked about the compensation situation. But I believe it is better to have a happy Lucy, who feels that her time is valuable, rather than an increasingly frustrated Lucy, as each second ticks along.
6. Think ahead
If you know you will be terminating an employee or if you receive notice that an employee is leaving, think about the most important aspects of his or her job and memorialize the procedures. For example, in the case of Lucy, ask Lucy to draft a memo to the file as to her procedures in billing Medicaid. Have her write which service notes are billed for which codes and the reasons in support and how she manually enters data into NCTracks. It may seem tedious, but these notes will be invaluable during any future litigation.
Along the same vein as above, if possible, have Lucy train Bill prior to her leaving. That way, if Lucy is an undesirable witness, Bill can testify that he follows the same protocol as Lucy because Lucy trained him and he follows her protocol.
Hopefully, these TIPS will be helpful to you in the future in the case of employees leaving your practice. Print off the blog and review it whenever an employee is leaving.
As I am driving back to the office after lunch, I hear on the news that CMS has certified NCTracks! This is huge on so many levels, and I will have to add another blog about once I get more information. So after 2 years and almost 8 months after its go-live date, NCTracks is certified.
Had CMS not certified NCTracks, then NC would have lost millions of dollars in federal dollars to fund the computer program created by Computer Sciences Corporation (CSC).
I am going to look into the standards for the certification…I know there are over 600 criteria that must be met for certification…but what is the threshold? An ‘A?’ Or do you squeak by with a ‘D?’
In the meantime, NC will receive approximately $19 million from the federal government. NCTracks had replaced the decades-old computer system created by HP Enterprises back in the summer of 2013.
CSC is a named Defendant in a class action lawsuit filed on behalf of physicians across NC alleging that the computer system was fraught with errors when it went live, including erroneous denials and heavy administrative burdens.
Remember, this was not NCTracks’ first rodeo with an attempted certification from CMS. Back in 2013, CMS did not certify NCTracks.
In 2013, NCTracks did not meet a federal certification deadline that could have saved the state more than $9 million in annual operation costs. See article.
April 2015 has turned into a month of change for my family and me.
I am so excited to announce that as of today, I am a partner at Gordon & Rees. Robert Shaw will be joining as a senior counsel and Todd Yoho, our paralegal, will also be joining. So “Team Medicaid” is staying together!! Both Robert and Todd are integral parts of this team.
Yes, I will remain in Raleigh. Yes, I will still maintain this blog!
I did not take this decision lightly. I enjoyed every second of my time at Williams Mullen. The attorneys over at WM are top-notch and will be greatly missed.
However, Gordon & Rees (GR) provides us with a national platform, as it is the 89th largest firm in the country!!!!!
GR has 600+ lawyers in 21 different states!! This national platform will enable us to grow our practice across the country. We (GR) do not have an office in New Mexico yet…
In this type of practice, my clients are health care providers that provide health care to our most needy population. Every time that we “win” for our clients, we are allowing that client/health care provider to continue to accept Medicare/caid and to continue to serve their patients. Now we will have the opportunity to help health care providers all over the country!!! This is such an amazing opportunity, and I feel so blessed.
And it doesn’t stop there!
Concurrent with my transition to GR, my family has purchased a new house!!! We close on April 10th and the movers are coming April 11th. It is almost 5 acres with a four-stall barn and a lighted round ring for evening riding. For those who know me, my family and I have wanted a small horse farm for years. We are so excited! Although, between you and me, I may be taking away my husband’s debit card soon. He believes that prior to our move, we need to have a tractor, a golf cart, hay, fencing, a donkey, and multiple other farming paraphernalia. I disagree.
Oh, and we cannot forget the trial in New Mexico fast approaching…and another trial 2 weeks afterward. This is just how I like it! I love my family, and I love my job!
So, Happy Easter, everyone!!!
My new email is:
The appearance of my blog may change in the near future…but the content will not. I will continue to blog on the ongoing plights of those health care providers who choose to accept Medicaid/care, the Goliaths who stand in their way, the laws and regulations surrounding this esoteric, but so important topic, and the impact of public health on our tax dollars!
“Nothing in the world can take the place of Persistence. Talent will not; nothing is more common than unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education will not; the world is full of educated derelicts. Persistence and determination alone are omnipotent.” Calvin Coolige.
Senate Bill 568 was filed today!!! It is a bill that you should follow!
SB 568 reads: “It is the intent of the General Assembly to transform the State’s health care purchasing methods from a traditional fee-for-service system into a value-based system that provides budget predictability for the taxpayers of this State while ensuring quality care to those in need.”
It proposes, among other things, a consolidation of the 9 current managed care organizations (MCO) here in North Carolina to “not more than 6″ and “no less than 4″ MCOs.
It further establishes another acronym: ARPLOs.
“At-Risk Provider-Led Organizations (ARPLOs). ARPLOs are capitated health plans administered by North Carolina’s provider-led Accountable Care Organizations that will manage and coordinate the care for the Patient Population, outside of the PCMHs, pending waiver approval where appropriate for this transformation by the Center for Medicare & Medicaid Services.”
Remember, the House has pushed for ACOs and the Senate has pushed for MCOs. See blog.
Is the Senate bending toward the House??????
More to come…
Recent stories in the news seem to suggest that health care fraud is running rampant. We’ve got stories about Eric Leak‘s Medicaid agency, Nature’s Reflections, funneling money to pay athletes, a seizure of property in Greensboro for alleged Medicaid fraud, and, in Charlotte, a man was charged with Medicaid fraud and sentenced to three years under court supervision and ordered to pay $3,153,074. And these examples are local.
Health care fraud with even larger amounts of money at stake has been prosecuted in other states. A nonprofit up in NY is accused of defrauding the Medicaid system for over $27 million. Overall, the federal government opened 924 criminal health care fraud investigations last year.
What is going on? Are more people getting into the health care fraud business? Has the government become better at detecting possible health care fraud?
I believe that the answer is that the federal and state governments have determined that it “pays” high dividends to invest in health care fraud investigations. More and more money is being allocated to the fraud investigative divisions. More money, in turn, yields more health care fraud allegations…which yields more convictions….and more money to the government.
Believe me, I understand the importance of detecting fraud. It sickens me that those who actually defraud our Medicaid and Medicare systems are taking medically necessary services away from those who need the services. However, sometimes the net is cast so wide…so far…that innocent providers get caught in the net. And being accused of health care fraud when you innocent is a gruesome, harrowing experience that (1) you hope never happens; and (2) you have to be prepared in case it does. I have seen it happen.
As previously stated, in fiscal year (FY) 2014, the federal government opened 924 new criminal health care fraud investigations. That’s 77 new fraud investigations a month!! This number does not include civil investigations.
In FY 2012, the Department of Justice (DOJ) opened 2,016 new health care fraud investigations (1,131 criminal, 885 civil).
The Justice Department launched 903 new health-care fraud prosecutions in the first eight months of FY 2011, more than all of FY 2010.
These numbers show:
- an 85% increase over FY 2010,
- a 157% increase over FY 2006
- and 822% over FY 1991.
And the 924 investigations opened in fiscal 2014 only represent federal investigations. Concurrently, all 50 states are conducting similar investigations.
What is being recovered? Are the increased efforts to detect health care fraud worth the effort and expenditures?
Heck, yes, it is worth it to both the state and federal governments!
Government teams recovered $4.3 billion in FY 2013 and $19.2 billion over the last five years. While still astronomically high, the numbers dropped slightly for FY 2014. In FY 2014, according to the Annual Report of the Departments of Health and Human Services and Justice, the federal government won or negotiated over $2.3 billion in health care fraud judgments and settlements. Due to these efforts, as well as efforts from preceding years, the federal government retrieved $3.3 billion from health care fraud investigations.
So the federal and state governments are putting more money into investigating health care fraud. Why?
The Affordable Care Act.
Obviously, the federal and state governments conducted health care fraud investigations prior to the ACA. But the implementation of the ACA set new mandates to increase fraud investigations. (Mandates, which were suggestions prior to the ACA).
In 2009, Barack Obama signed Executive Order 13520, which was targeted to reduce improper payments and to eliminate waste in federal programs.
On March 23, 2010, President Obama signed the ACA into law. A major part of the ACA is focused on cost containment methods. Theoretically, the ACA is supposed to be self-funding. Detecting fraud, waste and abuse in the Medicare/Medicaid system helps to fund the ACA.
Unlike many of the other ACA provisions, most of the fraud and abuse provisions went into effect in 2010 or 2011. The ACA increases funding to the Healthcare Fraud and Abuse Control Program by $350 million over the next decade. These funds can be used for fraud and abuse control and for the Medicare Integrity Program.
The ACA mandates states to conduct post payment and prepayment reviews, screen and audit providers, terminate certain providers, and create provider categories of risk.
While recent articles and media seem to indicate that health care fraud is running rampant, the substantial increase in accusations of health care fraud really may be caused by factors other than more fraud is occurring.
The ACA mandates have an impact.
And, quite frankly, the investigation units may be a bit overzealous to recover funds.
What will happen if you are a target of a criminal health care fraud investigation?
It depends whether the federal or state government is conducting the investigation.
If the federal government is investigating you, most likely, you will be unaware of the investigation. Then, one day, agents of the federal government will come to your office and seize all property deemed related to the alleged fraud. Your accounts will be frozen. Whether you are guilty or not will not matter. What will matter is you will need an experienced, knowledgeable health fraud attorney and the funds with which to compensate said attorney with frozen accounts.
If the state government is conducting the investigation, it is a little less hostile and CSI-ish. Your reimbursements will be suspended with or without your notice (obviously, you would notice the suspension once the suspension occurred). But the whole “raid on your office thing” is less likely.
There are legal remedies available, and the “defense” should begin immediately.
Most importantly, if you are a health care provider and you are not committing fraud, you are not safe from accusations of fraud.
Your insurance, most likely, will not cover attorneys’ fees for alleged intention fraud.
The attorney of your choice will not be able to accept funds that are “tainted” by alleged fraud, even if no fraud occurred.
Be aware that if, for whatever reason, you are accused, you will need to be prepared…for what you hope never happens.