If Dealing in Medicare or Medicaid, Even Private Insurers Must Play by the Rules

Providers need to know their appeal rights and be prepared to exercise them.

The other day I read an article about Medicare Advantage (MA) audits. The journalist, bless his heart, is not a lawyer, so I shouldn’t chastise him; however, I believe that all people should understand that Medicare and Medicaid are government-paid health insurance. When you get only a share of your salary when you get paid, you should understand that a portion of your tax dollars is contributing to Medicare and Medicaid health insurance for your fellow Americans, even if you yourself are not on Medicare and Medicaid.

So, when I read an article noting that “the Biden Administration announced a rule Monday cracking down on Medicare private plans that have overcharged the federal government,” I think to myself that Medicare is not a private plan. So, I want to dispose of a common rumor.

When Blue Cross Blue Shield (BCBS), Optum, UnitedHealthCare (UHC), or whichever private insurer receives a Medicare or Medicaid contract to manage such funds, although these are private entities, when they accept taxpayer money, they become quasi-government contractors. They must follow Medicare and Medicaid law. They cannot act as private payors anymore. But I do not believe that they got the memo.

For example, in North Carolina, we have all these managed care organizations for Medicaid. They are basically private companies that pay their CEOs outlandish salaries, yet they are doing so with our tax dollars. When providers would be accused of owing the managed care organizations (MCOs) money or get terminated from their catchment areas, we would litigate, and the MCOs would argue that “we aren’t state actors, we are private; we can do what we want, when we want, for any reason.”

The answer to this is “no.” MCOs and government contractors cannot do as they please. They must follow the Social Security Act and the Patient Protection and Affordable Care Act and any other regulation germane to Medicare and Medicaid.

When Optum says a provider owes $12 million in overpayments for documentation nitpicking, you have appeal rights. You do not have to present to arbitration like your contract may or may not stipulate. Arbitration is stupid-expensive, and the regulations allow you a less expensive course of action by appealing through the administrative court system. Be it Medicare or Medicaid, either your state or the federal government has administrative processes.

Regardless of what your contract states, if the payor is accepting tax dollars, you may utilize the administrative courts and forego arbitration or mediation.

The beauty of administrative law is that the lawyer you choose does not have to be licensed in the state in which you reside. This is why I have clients in more than 40 states.

The upshot is that MCOs and Medicare contractors like Optum cannot terminate for no reason, even though the contracts say so. Optum cannot dislike a provider for whatever reason and decide to put the provider out of business. Because if you rely on Medicare or Medicaid for revenue, when these quasi-government entities decide to terminate you, you are all of a sudden financially strapped. You may go out of business. The only legal tool available to you at this juncture is to request an injunction to stay the Medicare or Medicaid contractor from terminating you. Because they do not have that authority to willy-nilly terminate you from Medicare or Medicaid.

This infuriates me. I have been successful in obtaining injunctions in multiple states, stopping the arbitrary terminations of providers from government contractors’ contracts. The contracts may state that termination at will is allowed, but government regulations say otherwise. And these private companies that accept taxpayer money must abide by these regulations.

So, next time Optum or an MCO says “you owe $12 million” or “you are terminated from our network,” say “not today,” and get an attorney.

Programming note: Listen to healthcare attorney Knicole Emanuel’s live RAC Report every Monday on Monitor Mondays with Chuck Buck, 10 Eastern.