KDA Today

KDA Today

For Immediate Release

Date: Feb 12th, 2013
Contact: By Len W. Morrow, DMD

The Tip of the Iceberg: Actions by the Kentucky Department for Medicaid Services Which May Sink KMAP

We are all familiar with the tragic story of the sinking of the Titanic, when it struck an iceberg off the coast of Newfoundland.  The Titanic had been advertised by her builders as “unsinkable even by God”.  Under the command of Captain Edward Smith, she carried 2,224 passengers, including some of the wealthiest people in the world, as well as hundreds of immigrants from Great Britain, Ireland, Scandinavia and Europe, who were seeking a better life in America.

There were tragic navigational errors, which led to the collision with the deadly iceberg that sunk the Titanic. Most of us are not familiar with the governmental and regulatory errors which contributed to the demise of the Titanic. Although the Titanic was compliant with marine laws, the lifeboat requirements were written for another era and had never been updated, leaving the passengers and crew in serious peril in case the ship went down.

The Titanic had been specially built with advanced safety features such as watertight compartments and remotely activated watertight doors, but she carried only enough lifeboats for 1,178 passengers--slightly more than the requirements for one half of her passengers or one third of her total crew and passenger capacity.

History is replete with evidence of governmental and regulatory failures that permitted a faulty design of the ship.  Failure of the rivets to hold the panels of the ship together in the collision with the iceberg proved catastrophic. Navigational errors and the arrogance of the Captain of the Ship, who had previously ignored seven iceberg warnings from his crew and other ships, sealed the doom of so many souls that night.

The tragic story of the sinking of the Titanic and the governmental regulatory failures that led to this tragedy is very apropos to what is now happening with the Kentucky Medicaid Program (KMAP), the Department of Medicaid Services (DMS), the Cabinet for Health and Family Services (CHFS) and Optum Insight (Ingenix, the private auditing company hired by Governor Beshear to audit KMAP) as they have created and implemented an audit of alveoloplasty services, provided by participating Kentucky Oral and Maxillofacial Surgeons (OMFS).

I would compare the DMS actions, self-creating the iceberg (the OMFS/alveoloplasty audit) into which the S.S. KMAP has collided, by creating invalid Internal Change Order 16402 with the failure of Captain Smith to heed the iceberg warnings, which would have saved the Titanic. Having been told a collision with an iceberg was imminent, to proceed at full speed is as to exhibit either an ignorance of Kentucky State Law (KRS/KAR), a manipulation of the law; or flaunting of the DMS/Optum Insight as being above the law.

Unfortunately, this pattern of “audit-the-doctor-to-gain-funding” for the fund-deficient State Medicaid programs” has become “standard of care” for Medicaid programs throughout the USA. This all-too-common practice by financially strapped state Medicaid programs is not restricted to Dentistry/OMFS.  If the records were searched, one would discover that almost every field of medicine is also suffering from such abuse. Can there be any question as to why so many healthcare providers are disembarking the Good Ship Medicaid?

If the rivets holding the panels of the body of the Titanic were so faulty that the panels of the Titanic ruptured when hitting the iceberg, I can only imagine the severe damage to the under-funded, dysfunctional, shoddily-constructed S.S. KMAP, as she ignores warnings and plows into the ice-field of financial and man-power icebergs before her bow.

I must preface what I write by disclosing that, as a retired Oral and Maxillofacial Surgeon, I do not have any skin in the travesty, which I am disclosing, or in the future tragedy which I foresee for the KMAP and participating dentists. I have become involved with the OMFS/alveoloplasty dispute out of a love for my profession and my specialty, a belief that underprivileged citizens deserve access to medical and dental care; and, a belief in justice and that no government agency is above the law.

The tragedy of the OMFS/alveoloplasty audit by DMS/Optum Insight must be publically exposed and shared with my dental colleagues, because I believe that the OMFS/alveoloplasty audit and financial recoupment demands from what I believe to be an illegal and invalid audit, provide a snapshot, the “tip of the iceberg”, if you will, of the future relationship of, what I would term, the Good Ship S.S. KMAP, with the dental profession.

You must understand that persistent and repetitive efforts were made by the affected OMFS and their attorneys, the KDA, Mike Porter, Executive Director of the KDA and me to educate the DMS, CHFS, KMAP and Governor Beshear about the “mistakes” and “poor advice” from Optum Insight, which led to the OMFS/alveoloplasty audit/recoupment demands and to the invalidity and illegality of the audit and audit demands.

The State has refused to address these “errors”. I need to point out what I believe was a failure of the DMS/Optum Insight to provide the OMFS legally-obligated, due process as provided by the Kentucky Revised Statutes (KRS)(the “law”) (KRS 13A.130) and Kentucky Administrative Regulations (KAR)(907 1:671) (adopted regulations by which the laws are interpreted and implemented by State Agencies, such as the DMS).

The general dentists, reading this article, should be forewarned about similar actions by the DMS/KMAP, which will have the potential to affect their future practice lives. Considering the current strained relationship between organized dentistry, and individual practitioners of dentistry in our state, with KMAP------ difficulty/delay in gaining approval for needed care, decreased reimbursement, delayed reimbursement-----, the abusive audit of OMFS by DMS/Optum Insight and the reports of similar actions by DMS/Optum Insight with general dentists and the real fear of future audit demands for general dentist participants with KMAP, projects a troubled future for KMAP and beneficiaries of KMAP : a severe shortage of general dentists and dental specialists, who would not risk their present and future  by participating with KMAP. We must also consider that the KMAP roll is expected to expand from 950, 000 to at least 1,500,000 patients by 2014, as the Affordable Care Act is enacted.

Perhaps, preventing/limiting access to dental and medical care for the soon-to-be expanded KMAP beneficiary rolls, by eliminating the number of providers needed to meet the demand for care, is a less than transparent effort by DMS to manage the current financial shortfalls now suffered by KMAP. Those demands will be dramatically increased by 2014. Once again, the most vulnerable Kentucky citizens, for whom KMAP was created, will suffer from a resultant limited access to needed dental care, which must be considered “rationing” of dental care.

It is significant to note the national trend of physician providers to either elect not to treat Medicaid or Medicare covered patients or to restrict the number of such insureds they will treat, because of low reimbursement. As the Affordable Care Act goes into full force, it is not difficult to imagine the effect on our most vulnerable citizens, the elderly and the under-privileged: “rationing” of medical care by limiting access to willing providers. Doesn’t this trend smell strongly of the healthcare delivery system in England, Canada and Europe?

The Affordable Care Act dramatically expands the KMAP beneficiary population and the Federal Government funds only an average 57% of the Medicaid expenditures. The transparently bankrupt Kentucky State Government is required to fund the balance. The Good Ship S.S.  KMAP is likewise transparently under-funded or bankrupt. In its present condition, KMAP is not sustainable and the S.S. KMAP will sink under the unmanageable weight of the debt it must carry in the future.

Although it is unquestionably unethical, it is logical that the DMS would desperately attempt to plug the financial holes in the hull of the sinking Good Ship S.S. KMAP by audits/recoupment demands from their medical/dental providers.  Delaying or denying treatment of beneficiaries, delaying payment for services rendered; and, limiting financial outlays by effectively restricting access of KMAP beneficiaries to care are ways the state is able to manage cash flow.  Fewer and fewer dental providers will be willing to participate with KMAP and be able to serve the ever increasing demands of an increasing KMAP population.

Sustaining a program that was established to help the under-privileged, by abusing the willing dental/medical providers and the under-privileged beneficiaries does not make sense. Effectively passing on the financial burden of propping-up a bankrupt KMAP to the medical and dental providers, by reducing, denying and delaying reimbursement; or, seeking questionable audit recoupments, is unsustainable. Even the most morally and socially generous doctors will not participate with KMAP when their overhead and the KMAP reimbursement are marginally equal and the threat of future audit recoupment demands hangs over their heads.

Now, to the story of the travesty of the OMFS/alveoloplasty audit dispute (the “Iceberg” into which the DMS has already rammed the S.S KMAP), involving what I believe to be an audit and recoupment demands, based on invalidity and illegality DMS (Internal Change Order 16402, the basis for the audit and recoupment demands, clearly violates KRS 13A.130); therefore, making these actions null, void and unenforceable.

As the dark side of this story is told, there is an “enlightened side” from which you, as a dental professional, can draw encouragement and professional pride. At a time when many dental practitioners doubt the value of “organized dentistry” in their professional lives or the importance of being a dues paying member of the Kentucky Dental Association or the American Dental Association, the unwavering professional and financial commitment of the Kentucky Dental Association in the OMFS/alveoloplasty audit dispute, has been a testament to the value of belonging to organized dentistry.

Mike Porter, Executive Director of the KDA, has willingly devoted every personal, physical and financial resource of the KDA in support of defending the OMFS from what we believe to be an abusive and invalid action by the DMS/State of Kentucky.

Mr. Porter has spent innumerable hours in conferences with lobbyists (paid for by the KDA), representatives of the DMS/CHFS and me. He and the KDA have exhausted all contacts and resources to fight what we believe are abusive actions by DMS/Optum Insight; and, to protect the general dentist providers for KMAP from similar future actions. In addition, you can be proud that the Editor of the Journal of the Kentucky Dental Association, former President of the KDA, Dr. John Thompson, who was kept updated about the OMFS audit dispute, has made a personal effort to encourage the State/DMS to seriously consider the facts of the audit dispute and to recognize the mistake of the audit, so it might be peacefully resolved without litigation.

As members of the KDA, you can be comfortable in knowing that you have a very active and functional KDA and Executive Director of the KDA, fully dedicated to protecting the interests of their members. Although my experience in attempting to educate Governor Beshear and the DMS/CHFS as to the errors/invalidity of their actions in the OMFS/alveoloplasty dispute has been professionally disturbing and personally frustrating, seeing your KDA at its best, protecting your present and future interests, has been fulfilling and eye-opening.

You should be proud to be a member of the Kentucky Dental Association. As governmental intrusion into the profession of Dentistry widens in the future, having “organized” representation by the Kentucky Dental Association, will be essential for the future of each dental practitioner. As with unions, the only way to fight governmental or corporate abuse is through joining together as an “organization”, whose unified voice is more readily heard by the abuser.

Although the KDA and my joint involvement in attempting to gain a non-litigated resolution to the OMFS/alveoloplasty audit dispute began in August 2012, for several months, the KDA/Mike Porter had been fielding complaints from individual OMFS and attorneys for several affected OMFS, who had been working on the audit dispute.

There is a dossier of both written and verbal communication, too detailed to include in this article. Everything was shared with the appropriate Kentucky state government officials:

Governor Steve Beshear

Holly Hopkins, General Counsel to Governor Beshear

Lawrence Kissner, Commissioner of DMS

Eric Friedlander, Deputy Secretary of CHFS

Audrey Haynes, Secretary of CHFS

We have made the entire record of correspondence, of arguments and of legal opinion available on the KDA website. (Place link here *******)

The following is a brief summary that will help you grasp the invalidity and injustice of the OMFS/alveoloplasty audit, understand the longstanding history of the DMS interpretation and application of relevant Kentucky Administrative Regulations (KAR), as related to “billing for and reimbursement of” alveoloplasty procedures performed by OMFS for KMAP beneficiaries., from 2006 to April 11, 2011, the time period of the disputed audit, a discussion of these relevant KAR is also presented.

Both billing for, and reimbursement of, the alveoloplasty procedures, in question in the disputed audit, are directly related to the DMS’ longstanding interpretation and application of multiple Kentucky Administrative Regulations (KAR) (907 KAR 1:026, 1:626, 3:005 and 3:010), related to the practice of Dentistry/OMFS and Physicians.

It is well-established that the DMS has a longstanding a history of “correct” interpretation and application of the pertinent KARs  (KAR 1:026, KAR 1:626, KAR 3:005 and KAR 3:010), related to billing and reimbursement of alveoloplasty procedures by OMFS over the past 17 years and during the years in question in this disputed audit (2006 to April 11, 2011).

Sadly, many of the affected OMFS can also document that their constitutional due process rights were denied them by the out-of-control actions of the DMS/Optum Insight, secondary to the DMS/Optum Insight failing to provide the OMFS with timely notification of the audit and timely, if any, notification of their right to Dispute Resolution, as afforded them by 907 KAR 1:671 (Conditions of Medicaid provider participation; withholding overpayments, administrative appeal process, and sanctions).

The record could not be clearer: in an effort to gain funding for a bankrupt KMAP, the DMS made a critical mistake by creating invalid, Internal Change Order 16402, with which to justify the OMFS/alveoloplasty audit. In doing so, the DMS rammed the S.S. KMAP into the legal rights of participating OMFS. Furthermore, the DMS/Optum Insight, just as Captain Smith with the doomed Titanic, through their negligent actions/failures in making recoupment demands, negligently rammed the S.S. KMAP into the constitutional rights of the abused OMFS. 

In spite of our repeated efforts and the efforts of attorneys, who represent the individual OMFS in Dispute Resolution Hearings, to gain a peaceful and non-litigated resolution to this travesty, the DMS/CHFS/State has elected to unilaterally ignore the mistake and invalidity of the OMFS/alveoloplasty audit. The actions by the DMS in the OMFS/alveoloplasty audit and the failure of the DMS/Optum Insight, in the face of overwhelming evidence of abuse by DMS/Optum Insight and invalidity/illegality of the audit, to take appropriate action to grant relief from the audit/recoupment demands, should be a “warning shot over the bow” to general dentists about their tenuous future relationships with KMAP. Similar actions by DMS (valid or invalid) against all dental practitioners who participate with KMAP have the potential to become personal financial icebergs for your practices.

The DMS has failed to see this clear and present, large iceberg … the invalid, illegal OMFS/alveoloplasty audit and recoupment demands…. which has the potential to badly damage the Good Ship, S.S. KMAP. I predict rough seas for the S.S. KMAP in the future, as, much like the Titanic; she blindly sails into even more damaging icebergs, which will undoubtedly drive even more dental practitioners from the rolls of participating dental providers, who will disembark the S.S. KMAP.

Unless there are urgent and dramatic changes to KMAP, I also predict rough seas ahead for those dental practitioners, who blindly stay onboard the Good Ship. S.S. KMAP, whose “Captains” (DMS and CHFS, Optum Insight), much like Captain Smith, seem to be asleep at the helm. Like the passengers on the Titanic, the lifeboats will be too few to save the passengers (KMAP beneficiaries); or, the crew (the dental providers) who will be asked, through decreased reimbursement or fee recoupment via audits/recoupment demands, to purchase the lifeboats needed to save the passengers (KMAP beneficiaries) of the sinking S.S. KMAP.

Even more sadly, I predict very rough seas and icebergs for KMAP patients, who must stay aboard the S.S. KMAP, because the abusive actions of the DMS will lead to a significant decrease in the number of dental providers (dentists will refuse to participate with KMAP) at a time when the number of KMAP beneficiaries will dramatically increase. Without an adequate crew, who will serve the passengers? Access to dental care by our most vulnerable citizens will be severely limited, because there will be too few dentists to meet the increased demand for dental care created by the Affordable Care Act. The Law of Supply and Demand applies to health care, just as the law applies to business.

Although Commissioner Kissner, Secretary Audrey Haynes, Deputy Secretary Friedlander and Governor Beshear have been provided clear navigational knowledge of the perils facing the S.S. KMAP, from decreasing dental provider participation on the supply side, as the helmsmen of S.S. KMAP; it is unfortunate that they have elected to sail blindly into the iceberg-filled waters of the future. As well-documented/well-informed “Captains of the Ship”, the DMS, Commissioner Kissner, Secretary Haynes and Governor Beshear will have only themselves to blame as the dental providers jump off the S.S. KMAP and the KMAP beneficiary passengers go down with the ship.

There is still time to save the S.S. KMAP, as she relates to the dental profession, dental providers and dental beneficiaries. One place to start would be for the DMS to make an honest effort to mend the damaged relationship with the KDA and the dental profession, by increasing the reimbursement schedules to legitimate levels, eliminating delays and denials for treatment, assuring timely reimbursement; and eliminating non-legitimate witch-hunt audits.  Perhaps then, Kentucky dentists may stay on board the S.S. KMAP and might even help repair some of the gashes in her hull.

Another urgent place to start would be for the Governor/DMS/CHFS to acknowledge the mistake/invalidity of the OMFS/alveoloplasty audit; and, to mend the fractured relationship with OMFS by dropping a “lifeboat” to the 80 affected OMFS in granting immediate and just relief from what must be considered invalid audit recoupment demands, associated with the invalid OMFS/alveoloplasty audit. Perhaps, then most of these very critical dental specialty providers, the “emergency room” for many KMAP patients, will choose to stay on board the S. S. KMAP.

Without a non-litigated and just resolution to the OMFS/alveoloplasty audit debacle, the affected OMFS will be forced to drag the Good Ship, S.S. KMAP into the more troubled waters of litigation in Franklin Circuit Court, where they will seek due process from the abuses by the DMS. Unfortunately, accessing the court system, where facts and law, not bureaucratic or agency posturing, seems to be the only way the affected OMFS will gain ethical and legal due process.

Once the DMS/S.S. KMAP chart a course for these troubled waters, there is little to no chance that the affected OMFS will ever re-board the Good Ship, S. S. KMAP; and, there is good evidence to suggest that general dentistry practitioners will take notice and join their OMFS colleagues in deserting the Good Ship. S.S. KMAP, before they suffer similar abuses, as the S.S. KMAP intentionally or blindly sails the dental providers and the KMAP beneficiaries into even more troubled waters.

Considering the unfortunate actions of the DMS in creating Internal Change Order 16402, in order to justify the invalid, illegal OMFS/ alveoloplasty audit and carrying out associated recoupment demands; the failure of the DMS to consider correcting their bad mistake prior to litigation, in the face of overwhelming evidence to the contrary; the beginning of questionable audits of general dentists: and, the resultant departure of multiple general dentistry and dental specialty providers from KMAP, the analogy of the fates of the “unsinkable” Titanic and the “unsinkable” S.S. KMAP takes on added significance.   

Unless the State/DMS wishes to continue to “scuttle” the Good Ship S.S. KMAP, which is already listing, the State/DMS must act with integrity and urgency to regain the trust of the KDA and to retain the dental providers, who keep the dental engine of the S.S. KMAP running.

Just like a scene from the movie, Titanic, without astute leadership, chaos will inevitably consume the S.S. KMAP, which is already listing under the weight of financial insufficiency and dental/medical provider distrust; and, she will sink beneath the waters of a quality healthcare delivery program for the under-privileged citizens of the State of Kentucky.

An unabridged version of communication with the DMS/CHFS and Governor Steve Beshear can be obtained upon request from Len W. Morrow, DMD at: pappy2036@gmail.com

 

 

 

 

 

 

 

 

 

 

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