Wednesday, December 30, 2009

Law School 101: Federal law trumps state law

The basic tenet is that Federal laws and regulations supercede state laws and regulations, and that the Constitution supercedes Federal Law.

If it's a right that comes from the Constitution, then it's a civil right.  Civil rights laws forbid discrimination on the basis of age, race, religion, sex and disability.  No matter how inconvenient some of these civil rights might be to state governments, they can't take them away from you.

If it's a right that comes from Federal Law, then it's a legal right.  States also cannot legislate to restrict your legal rights. 

EPSDT is a legal right children under the age of 21 have to all the services that are "medically necessary".  These services are listed and mandated under section 1905(a) of the Social Security Act.  You can't get much more Federal that that.   States can spend their EPSDT funds in different ways, such as through the Department of Education in addition to the Department of Human Services (Medicaid).  But if your child's treating provider says something is "medically necessary" for your child, then, regardless of whether it is a normal Medicaid service in your state, the state is supposed to provide it.

The idea that a treating doctor might know more about what is medically necessary for a child than a state bureaucrat in charge of the budget has been the proverbial thorn in the side for states like Hawaii.  States across the country have been spending millions of tax payer dollars fighting and losing legal battles to restrict spending on people with disabilities, children in particular. 

Other states, again like Hawaii, are violating the Constitutional right people with disabilities have to receive the services needed for them to stay at home with their loved ones.  Study after study have shown it's cheaper in the long run than throwing everyone into institutions, not to mention the civil right is not to be forced into an institution because of lack of home services.

It's not like the states don't have the money to do this.  In fact, the states have all received hundreds of millions (if not billions) of stimulus funds that could easily plug any budgetary holes in services for the elderly and disabled.  It's not taking any money away from anyone else, since the Recovery Act states the funds can only be spent on Medicaid.

But back to the issue of "medical necessity".

Back in 2004, a federally funded pamphlet aimed at the parents of kids with disabilities noted that

States have the right to review a provider’s decision, and it is
not uncommon for providers and Medicaid agencies/HMOs to disagree on what
is medically necessary. However, several courts have found that states must
defer to the doctor’s opinion in treating patients.

In August 2009, the CMS (Centers for Medicare and Medicaid, the federal Medicaid regulatory agency) wrote in a letter to Idaho

Any service required as a result of an EPSDT screen and which is currently covered under the scope of the Enhanced Benchmark Benefit Package will not be subject to amount, scope, and duration limitations, but will be subject to prior-authorization. The additional service must be documented by the attending physician as medically necessary and that the service requested is the least costly means of meeting the recipient's medical needs. Preauthorization from the Department or its authorized agent will be required prior to payment. (my emphasis)

Two more federal rulings have just come down in Georgia that state in no uncertain terms that the role the state plays in determining "medical necessity" is limited to ensuring the request isn't fraudulent.  The designated state Medicaid agency representative has the right to review the service and authorize it, but not to decide they know more about medical necessity than the treating provider.

the state may determine whether the physician’s diagnosis or prescribed treatment “was without any basis in fact.” Rush, 625 F.2d at 1157. Thus, the state may review an order of a treating physician for “fraud, abuse of the Medicaid system, and whether the service is within the reasonable standards of medical care.” Hunter v. Medows, Case No. 1:08cv2930-TWT (N.D. Ga. Nov. 3, 2008). See Collins v. Hamilton, 349 F.3d 371, 375 n.8 (7th Cir. 2003) (a state's discretion to exclude services deemed “medically necessary” by an EPSDT provider
has been circumscribed by the express mandate of the statute); Pediatric Specialty
Care, Inc. v. Arkansas Dept. of Human Servs., 293 F.3d 472, 480 (8th Cir. 2002)
(finding that a state must pay for costs of treatment found to ameliorate conditions
discovered by EPSDT screenings if such treatments are listed in section 1396d(a));
and Pereira v. Kozlowski, 996 F.2d 723, 725-26 (4th Cir. 1993) (“In section
1396d(r)(5), the Congress imposed upon the states, as a condition of their participation
in the Medicaid program, the obligation to provide to children under the age of
twenty-one all necessary services, including transplants.”).
The Federal judge in that case went on to say there was a "clear statutory intent that the
1989 amendment adding § 1396d(r)(5) took away a state’s discretion not to provide
necessary treatment
for individuals under the age of twenty-one." (my emphasis)

A second Federal decision issued in Georgia determined that cuts in home nursing services for a child violated that child's federal rights mandated by EPSDT. That was another example of the state Medicaid agency trying to say the state had equal decision making power with the treating provider over matters of medical necessity.

Nevertheless, Hawaii sees no reason to learn from any of these other costly trials, and is forging ahead with the old time claim that the state Medicaid agency can over-rule the recommendations of the treating physician.

I was very flattered recently when the Hawaii Medicaid Medical Director handed over the state's official written determination on "medical necessity" and stating there is nowhere "in the Federal and State rules that we can find allowing the treating physicians to be the sole determiners of medical necessity."

Flattered because the legalese document I was given was presumably prepared or edited by someone with a law degree.   It might even have been someone from the DC law/lobbying firm Hawaii has paid $3.5 million to for developing the state's Medicaid policy for the elderly, blind and disabled population.  I, of course, have no law degree, I'm just a mom. 

But I do know when a question is based on a false assumption. 

I can't show them a citation where federal law gives anyone other than the treating provider decision making rights over medical necessity because no where do these federal laws give any rights to anyone except the individual with the disability.  It's the individual with the disability who has the Constitutional rights to services that enable he or she to remain out of an institution, and federal legal rights to receive the medical care their treating providers say is necessary. 

The state can't restrict rights granted under federal law. Federal statutes give the states no more than the right to ensure the request isn't fraudulent, not to make a medical decision on behalf of the individual.

I find it interesting that CMS has been trying to get Hawaii to conform to federal Medicaid regulations since last August, and here the state is, four months later, still trying to justify violating the legal and constitutional rights of our elderly and disabled citizens. 

If the state remains on this course, I have to wonder how much more tax payer money will be spent on private attorneys before the issue is settled.  Meanwhile, the two for-profit insurance companies running the Hawaii Medicaid program for the aged, blind and disabled are slashing services and crying poor to the state.  I've already written about the large profits both companies managed to make while they were apparently losing money providing services in Hawaii. 

So the lawyers and the insurance companies make more money, while the actual population covered by federal Medicaid law suffers.

Tuesday, December 29, 2009

Are DC lobbyists being paid to advise Hawaii on how to violate federal Medicaid law?

A Washington, D.C. law firm, Covington & Burling, appears to have been paid more than $3 million (as of December 2008), for consulting with the state on its Medicaid QExA program.

All of the contracts appear to have been issued with exemptions from the normal procurement process; in other words, they all appear to be no-bid contracts.

Contracts have been issued in the name of Charles Miller of Covington & Burling, making him a "Special Deputy Attorney General" for Medicaid issues.  Those were issued by the state AG's office, and total $850,000 (of which $375,000 was to be paid through Federal funding).

The remaining contracts were all issued through the Hawaii Department of Human Services.  The contracts that I've located begin in December 2003, and the final one is an extension through December 31, 2008.  Since the latter contract mentions services will likely be needed to extend for several months after the February 1 QExA implementation, I suspect there may be another additional contract that I haven't been able to find.

Part of Covington's responsibility was to "provide strategic advice, consultation, project management and technical assistance on issues and policy decision as needed."  "Covington & Burling is well-established among Medicaid programs nationwide as an expert in the area of Medicaid program structure, compliance, and federal revenue maximization."

My question then is what role Covington has played in the ongoing discussions between state officials and federal Medicaid regulators.  The purpose of the discussions is to resolve potential violations of federal Medicaid law (including EPSDT).  Since Covington is a nationally known expert in Medicaid policy, it seems possible that they are advising the state on this issue.

What a waste of money, in my opinion.  Legal battles have already been fought across the country over Medicaid "policy" issues such as EPSDT, the concept of "medical necessity", and the rights of people with disabilities to remain at home with their families as opposed to institutionalization.

And as with Evercare and Ohana, presently crying poor to the state and asking for more money in their contracts, Covington & Burling overshot their estimate of $750,000 for one project by $1.25 million.  That contract had to be increased to $2 million as a result.

Is it possible that Hawaii is paying this firm to justify Hawaii's policy decision?  Just this week, Dr. Anthea Wang, Medical Director of Hawaii Med-Quest, sent me a document with the official DHS opinion on who decides "medical necessity", and says it's been signed off by the Policy folks.  Would that include anyone from Covington? 

How much money does the state of Hawaii want to waste trying to figure out how to avoid following federal Medicaid regulations?  The language is there to be followed, in recent (the past six months) regulations and official documents published by the federal Medicaid regulatory agency.  The money is probably even there, considering Hawaii's projected budget deficit through 2011 is about equal to the amount of additional stimulus funds the state is receiving.

The problem is the funds are being spent on lawyers and profits for private insurance companies, not on services to our elderly and disabled populations.

Here are links to the five contracts I found:

Monday, December 28, 2009

Hawaii -- deficit plus stimulus funds shouldn't equal a bigger deficit, should it?

The Honolulu bureau of the Associated Press ran a great article a week ago on the impact Hawaii's $1 billion budget deficit was having on education and others in need.

According to the official web site for the American Recovery Act, which tracks the money going out to the states as well as what the states admit to having, Hawaii reported receiving $811.9 million by October 30, 2009. 

The feds say they've awarded Hawaii $1.2 billion in contracts, grants and loans.  Over $1 billion of that is in grants.  One source I found said Hawaii had only received about 40% of the funds, but it's approved. 

Not to mention that the $1 billion projected deficit is by 2011, and we're talking money in the bank now with lots more on the way.

I've asked CMS (the Medicaid federal regulatory people) about this and have been met with evasive responses.  Having personally lived in Washington D.C. for 8 years, I can tell you that evasion from government employees is not a positive indication.

So with education being cut by a day a week and elderly and disabled people being threatened with institutionalization, what's the money being spent on?

Where is the Money Going?

Where is the Money Going? Hawaii receipt of stimulus funds

Thursday, December 24, 2009

Happy Holidays from Hawaii Medicaid: When $2.5 billion isn't enough

Apparently the almost $2.5 billion that Hawaii agreed to pay to UnitedHealth and WellCare in exchange for providing care for the state's disabled and elderly just isn't enough.

Less than a year after the two companies (UnitedHealth as Evercare and WellCare as Ohana) took over the state's Medicaid program that allows the elderly and disabled to stay in their homes, they're reportedly crying poor to the state.  All the actuaries screwed up.  The state has to renegotiate the contracts.  Woe is us.

And to prove it, they're slashing budgets from every which way.  Medically fragile children are having their nurses cancelled.  Quadraplegics are being told they can just sit at home by themselves all day and hope nothing happens.  Prescription medications are being cut to 21 day supplies, denied outright, or substituted by cheaper drugs that can worsen what they're supposed to be treating.

Hawaii's Attorney General's office has been investigating since September if WellCare is trying to defraud the state and a local quadraplegic man.  UnitedHealth admits outright they are in discussions with the state on how to weasel out of EPSDT's definition of case management on the basis of the state's 1115 Medicaid experimental project.  

In August, Federal regulators began discussions with Hawaii officials over potential violations of federal Medicaid law.  The DHHS Office for Civil Rights has been aware of the situation since July, and supposedly is now monitoring it directly from Washington, D.C.

Yet nothing has happened.  Families are spending the holidays wondering if they're going to have to institutionalize their child or parent or sibling so that UnitedHealth and WellCare can make a big enough profit.

I did a rough calculation of the profit off the top of the two contracts, and it comes to about $203 million over three years.  For a sense of comparison, the entire state budget for home services in FY2007 was only $140 million.

That doesn't include profits built into sub-contracts with wholly-owned subsidiaries.  Those end up disguised as direct medical payments in the budget so the 8% profit off the top includes 8% of the profits made by these subcontractors.

Apparently their budget woes in Hawaii aren't affecting the rest of UnitedHealth's and WellCare's contracts.  Both reported increased profits for the three months ending September 30, 2009 accompanied by increases in Medicaid and Medicare state contract clients.  UnitedHealth had third quarter revenue of over $21 billion, WellCare of $1.67 billion.

Meanwhile, UnitedHealth paid out over $405.7 million in fines in 2009 and WellCare paid $80 million in restitution to Florida in May and another $10 million to the SEC.

That doesn't even begin to touch on the subject of how much of Hawaii's federal stimulus funds that could only be spent on Medicaid (almost $175 million received as of December 4 with more on the way) are being directed towards the two companies.  If UnitedHealth and WellCare getting their standard 8% of off that, it's another $14 million. 

Nobody, including the state legislature, seems to know what's happened to that money.  I've gone so far, personally, as to ask CMS (the federal Medicaid regulatory people) how Hawaii is spending its Medicaid stimulus funds since its slashing budgets to the point of violating the ADA and federal Medicaid law.  They said they'd find me somebody to talk to, but haven't yet.  Rumor has it that it's a sensitive topic in Washington, which tells me Hawaii probably isn't the only state potentially violating civil rights and federal law by cutting services to disabled children, cognitively or physically impaired adults and the elderly.

A happy holiday it isn't.

Friday, December 18, 2009

How easy it is for a state to violate a child's legal rights

Two decisions handed down recently by a Federal Judge in Georgia could have a major impact on how our children are evaluated for and receive services.  It's a positive impact, that actually gives parents and caregivers, together with their childs' treating doctors and therapists, control over the decision-making process.

EPSDT (Early Periodic Screening, Detection and Treatment) has been around for years, providing all children on Medicaid under the age of 21 with any treatment a doctor says is "medically necessary."

But it's been an equally long process of court cases to convince states, often one by one by means of class action suits, to meet this legal requirement.

The two decisions in Georgia make it clear that decisions over treatment made by treating practitioners take precedence over state agency and/or contractor decisions that have no grounding in medical necessity.

The decisions also make it clear that EPSDT provides our children with a legal right that is "individually enforceable."  What that means is that any of us whose children have suffered harmful service cuts due to bureaucratic decision-makers can hold the state as well as any private contractors providing Medicaid agency services responsible and accountable. 

Here in Hawaii, we have a perfect example of how insidiously the state, and the two for-profit insurance companies contracted to provide EPSDT and Medicaid waiver services can violate our kids' legal rights.

First, there is a federal law (42 USC 1396a(a)43) that requires the state and its Medicaid delivery companies to make sure everyone eligible for EPSDT is educated on all the services they can receive through EPSDT. 

Hawaii's two for-profit health insurance companies, which signed contracts with the state worth together about $2.5 billion are Evercare, owned by Unitedhealth, and Ohana, owned by Wellcare.

Here is what Evercare has to say about EPSDT in their membership manual that is available online:

What are EPSDT services?
Children under 21 years of age may receive EPSDT services.
EPSDT services include shots and screenings that children
need to stay healthy. Your Service Coordinator can talk to
you about the EPSDT services your child needs and help
you schedule appointments.

Here is what Ohana tells its clients about EPSDT in their online membership manual:

EPSDT (Early and Periodic Screening, Diagnosis and Treatment) Well-Child Visits
Regular health exams for children. They are used to find and treat medical problems.

‘Ohana covers well-child checkups for all members from age 0 to 21. We want to make sure kids visit their PCPs at an early age. This is important for a child’s health later in life.

Neither manual meets federal legal requirements for EPSDT notification. 

Hopefully somebody will notice soon and do something about it.

About Me

My photo
I'm the mom of a child with disabilities. Hannah's first neurologist said she might never develop beyond the level of a 2 month old infant, and there wasn't anything I could do about it. The brain damage was just too severe. Nine years later, she walks, uses a touchscreen computer and I've just been shown she can learn to construct sentences and do simple math with the right piece of technology. Along the way, I discovered I needed to teach myself what Hannah's rights to services really were. Learning about early intervention services led to reading about IDEA and then to EPSDT. I've been waiting for the Obama administration to realize the power and potential of EPSDT for the medical rights - including the right to stay at home with their families - of children with disabilities. The health reform people talk about long term care, and the disability people talk about education and employment, but nobody is talking about EPSDT. So I am.