We all know that Medicare and Medicaid reimbursements rates are awful
. We also know that the States’ audit processes of health care providers are complete tomfoolery and cause damages to all health care providers nationwide, through attorneys’ fees, time away from patients gathering documents; stress providers endure when they are accused of owing money to the government. Throughout the years, people have lamented to me but done nothing. Well, perhaps, no longer. A group of providers in NC have stepped up. Twelve facilities have hired me to litigate higher reimbursement rates for the dental community. Obviously, we have to exhaust our administrative remedies, so our first line of attack will be a formal demand letter to CMS and NC DHHS. But we aren’t only suing for higher Medicaid dental reimbursement rates. We are also demanding retro-active higher Medicaid dental reimbursement rates and damages arising from NC’s broken audit system, which will only be distributed to the named-Plaintiffs. This will not be a class action. It is a multi-party lawsuit. Without question every dentist, oral surgeon, and orthodontist in NC will benefit from the higher Medicaid dental reimbursement rates. But only the named Plaintiffs will reap the rewards of the retro-active higher Medicaid dental reimbursement rates and the damages from the poor, faulty, and shotty auditing.
The company that NC, and many other States, contracted with to conduct dental audits is Public Consulting Group (“PCG”). According to PCG’s website, “Public Consulting Group (PCG) is a leading public sector management consulting and operations improvement firm that partners with health, education, and human services agencies to improve lives.”
One of the most glaring faux pas that PCG does is that PCG hires a dental hygienist to conduct its dental audits in NC and has for a long time. A dental hygienist is determining medical necessity for dentists, orthodontists, and oral surgeons, which I believe any reasonable person can attest, is ridiculous. I am not taking away the importance of dental hygienists; however, hygienist cannot read x-rays. Yet X-rays are part of the medical record and tell a story about someone’s mouth and what is medically necessary.
Also, with deference to an agency perhaps dissolving, we will have even more ammunition. Obviously, that depends on the Supreme Court overturning Chevron.
On average, NC Medicaid General Dental reimbursement rates fall 340.06% below the national 50% average fee charged for the same procedures (range of 190.66% to 928.75% below NDAS 50% fee). The existing rates would need to see, on average, a 255.05% increase in order to meet the maximum permitted threshold allowed by the NC State Medicaid Plan (75% of the 50% NDAS average).
Under §1902(a)(30)(A) of the Social Security Act, this data helps our argument that the payments are not “consistent with efficiency, economy, and quality of care and are [not] sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.”
We have also been researching the availability of retroactive damages. The Eleventh Amendment poses certain obstacles to seeking retroactive monetary awards out of state funds. The Eleventh Amendment generally deprives the federal courts of jurisdiction to hear actions for money damages brought against a State by its own citizens. This means that absent a showing that the State has expressly waived its Eleventh Amendment sovereign immunity or that Congress has abrogated that immunity, parties are generally barred from seeking retroactive relief paid from public funds of a State’s treasury, even for past harm suffered. However, there are a few exceptions. We are continuing to research those exceptions to obtain retroactive relief. For example, there are certain circumstances where the State may waive its sovereign immunity protections under the Eleventh Amendment and allow retroactive damages to be sought. The lawyers are exploring those circumstances, which involve strategic filing in certain venues and/or seeking an explicit waiver from the State through the pre-suit negotiations/demand. Further, our research establishes that we can still seek prospective relief without bar from the Eleventh Amendment, even if it seeks payment of State funds, as long as we can show that the payment is a necessary consequence of compliance in the future with a substantive federal issue/ determination of law. We are continuing our research on these issues, including research of administrative law decisions and other relevant authority that will allow us to be successful in obtaining the reimbursement awards.
We will continue to bolster our arguments. We hope to raise NC dental Medicaid reimbursement rates, which will help with access to care. While NC has over 200 oral surgeons in NC, only 9 are actively taking Medicaid patients. The State of NC DHHS provided false data when asked how many oral surgeons currently accept Medicaid patients in a trial a couple weeks ago. NC DHHS testified that 90-100 oral surgeons accept Medicaid. However, there is a huge difference between oral surgeons who are contracted with Medicaid and oral surgeons who actually are accepting Medicaid patients and treating them. The 9 oral surgeons who do accept Medicaid patients all know each other. NC Medicaid was expanded last year adding 600k+ to the Medicaid pool. Medicaid recipients deserve access to care. Providers deserve to be compensated fairly and not at a loss. The named Plaintiffs deserve damages for their unfair treatment and shotty audits. Peer to peer review should be required.