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

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.

Print Friendly, PDF & Email
Facebook
Twitter
LinkedIn

Knicole C. Emanuel Esq.

For more than 20 years, Knicole has maintained a health care litigation practice, concentrating on Medicare and Medicaid litigation, health care regulatory compliance, administrative law and regulatory law. Knicole has tried over 2,000 administrative cases in over 30 states and has appeared before multiple states’ medical boards. She has successfully obtained federal injunctions in numerous states, which allowed health care providers to remain in business despite the state or federal laws allegations of health care fraud, abhorrent billings, and data mining. Across the country, Knicole frequently lectures on health care law, the impact of the Affordable Care Act and regulatory compliance for providers, including physicians, home health and hospice, dentists, chiropractors, hospitals and durable medical equipment providers. Knicole is partner at Nelson Mullins and a member of the RACmonitor editorial board and a popular panelist on Monitor Monday.

Related Stories

Remain Compliant – and Take the Money

Remain Compliant – and Take the Money

Our first topic today is local coverage determinations (LCDs) and variation. I have written in the past about national and local coverage determinations, and I

Read More

Leave a Reply

Please log in to your account to comment on this article.

Featured Webcasts

Leveraging the CERT: A New Coding and Billing Risk Assessment Plan

Leveraging the CERT: A New Coding and Billing Risk Assessment Plan

Frank Cohen shows you how to leverage the Comprehensive Error Rate Testing Program (CERT) to create your own internal coding and billing risk assessment plan, including granular identification of risk areas and prioritizing audit tasks and functions resulting in decreased claim submission errors, reduced risk of audit-related damages, and a smoother, more efficient reimbursement process from Medicare.

April 9, 2024
2024 Observation Services Billing: How to Get It Right

2024 Observation Services Billing: How to Get It Right

Dr. Ronald Hirsch presents an essential “A to Z” review of Observation, including proper use for Medicare, Medicare Advantage, and commercial payers. He addresses the correct use of Observation in medical patients and surgical patients, and how to deal with the billing of unnecessary Observation services, professional fee billing, and more.

March 21, 2024
Top-10 Compliance Risk Areas for Hospitals & Physicians in 2024: Get Ahead of Federal Audit Targets

Top-10 Compliance Risk Areas for Hospitals & Physicians in 2024: Get Ahead of Federal Audit Targets

Explore the top-10 federal audit targets for 2024 in our webcast, “Top-10 Compliance Risk Areas for Hospitals & Physicians in 2024: Get Ahead of Federal Audit Targets,” featuring Certified Compliance Officer Michael G. Calahan, PA, MBA. Gain insights and best practices to proactively address risks, enhance compliance, and ensure financial well-being for your healthcare facility or practice. Join us for a comprehensive guide to successfully navigating the federal audit landscape.

February 22, 2024
Mastering Healthcare Refunds: Navigating Compliance with Confidence

Mastering Healthcare Refunds: Navigating Compliance with Confidence

Join healthcare attorney David Glaser, as he debunks refund myths, clarifies compliance essentials, and empowers healthcare professionals to safeguard facility finances. Uncover the secrets behind when to refund and why it matters. Don’t miss this crucial insight into strategic refund management.

February 29, 2024
2024 SDoH Update: Navigating Coding and Screening Assessment

2024 SDoH Update: Navigating Coding and Screening Assessment

Dive deep into the world of Social Determinants of Health (SDoH) coding with our comprehensive webcast. Explore the latest OPPS codes for 2024, understand SDoH assessments, and discover effective strategies for integrating coding seamlessly into healthcare practices. Gain invaluable insights and practical knowledge to navigate the complexities of SDoH coding confidently. Join us to unlock the potential of coding in promoting holistic patient care.

May 22, 2024
2024 ICD-10-CM/PCS Coding Clinic Update Webcast Series

2024 ICD-10-CM/PCS Coding Clinic Update Webcast Series

HIM coding expert, Kay Piper, RHIA, CDIP, CCS, reviews the guidance and updates coders and CDIs on important information in each of the AHA’s 2024 ICD-10-CM/PCS Quarterly Coding Clinics in easy-to-access on-demand webcasts, available shortly after each official publication.

April 15, 2024

Trending News

Happy National Doctor’s Day! Learn how to get a complimentary webcast on ‘Decoding Social Admissions’ as a token of our heartfelt appreciation! Click here to learn more →

Happy World Health Day! Our exclusive webcast, ‘2024 SDoH Update: Navigating Coding and Screening Assessment,’  is just $99 for a limited time! Use code WorldHealth24 at checkout.

SPRING INTO SAVINGS! Get 21% OFF during our exclusive two-day sale starting 3/21/2024. Use SPRING24 at checkout to claim this offer. Click here to learn more →