February 25, 2019
WRITTEN COMMENT ON 907 KAR 3:170
I am providing comment as an attorney for providers, including behavioral health entities, clinics, small practices and rural hospitals across the Commonwealth.
I have worked on Kentucky’s telehealth bills for the past six years and am so grateful to Sen. Alvarado for making this change in the law a reality. I co-chaired the Committee of agencies and providers who worked on drafting this regulation last fall. Kentucky Department of Medicaid staff were a vital part of the regulation workgroup. I’m proud that this regulation captures most of our team efforts.
In drafting the bill the focus was on ensuring complete parity, so rural patients could receive the same access to quality care as urban patients and so that providers could do what they do best – treat patients - without having to worry whether they would be reimbursed for that care. The law brought Kentucky to the forefront of states using telehealth to increase access to care for all its citizens. Telehealth care, where appropriate for the patient and the diagnosis, was to be treated identically to in person care.
The proposed regulation makes a damaging change to that statutory mandate for parity. In Section 3: Telehealth Reimbursement, the regulation changes payment for telehealth services that violates the intent of the law.
Section 3, Subsection 1(b) provides that after July, 2020, only one year after the law goes into effect, Medicaid shall slash reimbursement to 85% of the payment to be made for the same service when the patient is physically present with the provider. Cutting payment for necessary services in an attempt to steer providers away from new technology and better service delivery models fits neither the intent nor the requirements in the law. This reduction in payment is both improper and illegal.
In Section 3, Subsection 1(c) DMS attempts to retitle payment parity during year one (2019-2020) as “enhanced reimbursement”. Parity means the same, not lesser. Telehealth providers are not being paid extra in year one, they are being paid the same as other providers. There is no enhanced reimbursement outlined in either the regulation or the statute. After year one, providers are simply being paid less for rendering the same service as other providers.
Providers who serve patients via telehealth do the same work and provide the same professional care as they would if the patient was sitting in the same room with them. Providers who use telehealth pay the same amount of medical insurance, they use the same nurses, they complete the same records and they base their services on the same education. Providers who serve patients via telehealth take the same amount of time with patients and are held to the same standard as those whose patients are in the same room with them. There is no rational or legal basis for reducing payment when services are via telehealth.
Parity means equality and this Section eviscerates the intent and clear language of the law.
It is a fact of life that if a business or individual is faced with doing identical work for 15% less pay, they will choose to do the job in the way that brings in the higher reimbursement. Specialists who follow their Hippocratic oath and see Medicaid patients even though the per service reimbursement is lower than they could receive for seeing patients with private insurance will now have to sacrifice an additional 15% of the already low payment. Small town providers, already struggling to survive financially, will lose an additional 15% for each service rendered.
The MCOs set their payment maximums based on Medicaid’s reimbursement and usually pay less than traditional Medicaid. If Medicaid lowers reimbursement by 15% for telehealth, the MCOs may do the same, making telehealth services a financial impossibility for providers.
Often telehealth is the best way to meet a patient’s need. Older patients don’t have to travel for care. Behavioral health patients can be treated without facing additional stressors of new places and noises. Young or medically fragile patients don’t have to be exposed to waiting room germs.
Patients with unforgiving job schedules or heavy family responsibilities may struggle to get to a doctor, particularly if that patient is in far Eastern Kentucky and the specialist is in Bowling Green. A low-income patient may struggle to take time off work, pay for gas for the vehicle and a sitter for the children to see a provider in person. Telehealth permits access to care without those incidental risks and challenges. Telehealth services increase access and remove stigma that keeps patients away from care. With telehealth, patients don’t have to choose between obtaining medical care or keeping their job. What this subsection of the regulation does is force patients to make that terrible decision. DMS is frustrating the mission of Medicaid and impairing access to healthcare for our most vulnerable citizens. This is wrong.
When we force providers to choose between the financial survival of their practice or the needs of their patients, we have breached our duty to both populations.
Changing the way services are delivered requires patient and provider education, billing company amendments, and additional training for all involved. For DMS to require that, less than a year after implementing these new processes, additional changes must be made and a significant financial penalty be imposed on users would be dangerously disruptive to care provision. The payment reduction provision should be deleted from the proposed regulation.
The mission of Medicaid is to improve the lives of Medicaid enrollees through the development, implementation, and diffusion of innovative and evidence-based models of care that promote quality, value, equity and the engagement of patients, families, and communities. Paying providers less for the same care is in direct opposition to that mission.
DMS should remove the fee reduction from the telehealth services and reimbursement regulation and allow for true parity and ongoing protection of the benefits afforded by allowing patients and providers to work together in the way best suited to each particular case.
That’s the kind of statement that you would expect the Secretary of the Cabinet for Health and Family Services, the Kentucky Department of Medicaid, the Department of Education, and any other state agency or department auditing or evaluating corporations to make known to all the corporate entities, schools, Head Starts, Hospice, CMHCs, Community Action Agencies, clinics, hospitals, etc., that might need to know it.
And yet, with no fanfare or notice at all, the Office of Administrative Hearings has begun to dismiss cases where a party asked for the required KRS 13B Hearing but the CEO or Executive Director or some other person who is not a lawyer filed the notice.
After dismissal the Cabinet or State Agency automatically wins, and the provider – the one who actually provided services to the Medicaid member, the dying patient, the four-year-old student – doesn’t have any opportunity to argue that the state shouldn’t deny payment for services rendered.
The letters to providers notifying them of their right to request a 13B hearing do not tell the provider that the request must be signed by a lawyer or the case will be dismissed. The letter is addressed directly to the provider without a copy of the notice being sent to any lawyer. The letter spells out who to send the request to, how to send the request, where to send the request must be mailed, and the timeframe for sending the request. At no point in the letter does it state that the provider needs counsel to file the notice on behalf of the provider. Absent such clear notice, dismissal of the entire action is improper and inequitable.
State and federal laws similarly do not require that a provider have an attorney before a request for hearing can be filed. KRS 13B.050 “Notice of Administrative Hearing” provides at subsection 3(c) that the notice for hearing must contain:
The names, official titles, mailing addresses, and, if available, telephone numbers of all parties to the hearing, including the counsel or representative of the agency.
Id, emphasis provided. The use of the word “or” indicates to a reasonable person reviewing the Chapter 13B administrative hearing requirements, that the notice could be filed either by counsel OR by a representative of the agency. There is no mandate in the notice statute that requires the notice to be filed by counsel. Similarly, the applicable Medicaid statutes do not state that counsel is required to file a notice of hearing. See, e.g., 42 C.F.R. §§431.206 and 210, providing that under Medicaid laws, notice is required at the time of any action by Medicaid and that notice must inform the recipient of their right to request a hearing if they dispute the result. That law does not require or state that a provider’s request for hearing must be filed by counsel.
Procedural due process is required in administrative proceedings. It is elementary that the Due Process Clause of the Fourteenth Amendment to the United States Constitution ensures that no state may "deprive any person of life, liberty, or property, without due process of law." Procedural due process simply includes, at a minimum, reasonable notice of the Department's intended action and "the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (emphasis added); Cabinet for Health and Family Services v. A.G.G., 190 S.W.3d 338, 346 (Ky. 2006). When a provider is not told that the provider must retain counsel to file the request for hearing on the provider’s behalf, dismissing the action for a provider’s failure to do so violates procedural due process.
The law requires that an agency act in a non-arbitrary fashion with regard to motions before it. See: Kroger Ltd. Partnership I v. Cabinet for Health and Family Services, 2013 WL 3968554, *9 (Ky. App. Aug. 2, 2013) (unpublished), citing Kentucky Milk Marketing & Antimonopoly Comm'n v. Kroger Co., 691 S.W.2d 893, 899 (Ky. 1985). Strict compliance with statute and regulation are mandated. Jenny Wiley Health Care Center v. Commonwealth, 828 S.W.2d 657, 661 (Ky. 1992). "it is fundamental that administrative agencies are creatures of statute and must find within the statute warrant for the exercise of any authority which they claim." Dept. for Natural Resources v. Stearns Coal and Lumber Co., 563 S.W.2d 471, 473 (Ky. 1978). No statute permits or allows dismissal of this action due to a provider’s failure to comply with a policy the Department has not made known to the provider or enacted into regulation.
KRS 13B.150(2) governs this Court's review of a circuit court's prior review of an administrative agency's final order. Our review of an administrative action is generally focused on the question of arbitrariness. Kaelin v. City of Louisville, 643 S.W.2d 590-91 (Ky. 1982).
In determining whether an agency's action was arbitrary, the reviewing court should look at three primary factors. The court should first determine whether the agency acted within the constraints of its statutory powers or whether it exceeded them . Second, the court should examine the agency's procedures to see if a party to be affected by an administrative order was afforded his procedural due process. The individual must have been given an opportunity to be heard. Finally, the reviewing court must determine whether the agency's action is supported by substantial evidence . If any of these three tests are failed, the reviewing court may find that the agency's action was arbitrary.Bowling v. Natural Resources and Environmental Protection Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994).
Notice of the serious consequences of one's actions is key in determining whether due process is satisfied. For example, in a case where the Cabinet did not advise a party in writing that failure to take an action would irrevocably prejudice her right to the requested relief, procedural due process was not satisfied and the matter must be reversed. See: Unpublished case of Commonwealth v. Patterson (Ky. Ct. App., 2018). See also: Hamby v. Neel, 368 F.3d 549, 562 (6th Cir. 2004), which held that notices of TennCare denials violated procedural due process on several grounds including failing to advise the plaintiffs of "the consequences of re-applying after a denial instead of appealing such decisions." The Hearing Officer should find that the Department’s notice in this case was similarly deficient, as it did not place a provider on notice that unless a lawyer filed the request for a hearing, the Department would move to dismiss the case.
In dismissing cases where a provider didn’t have a lawyer file the request for a hearing, the Cabinet and the Hearing Officers assert that the Kentucky Bar Association’s Opinion KBA U-64 supports dismissal. The KBA has jurisdiction over lawyers, not CEOs of healthcare entities. The KBA opinion is not one that most organizations would have any way of knowing about. This is a clear denial of procedural due process. Procedural due process requires that the notice afford the parties a reasonable opportunity to be heard under the circumstances. Triple M. Min. Co., Inc. v. Natural Resources and Environmental Protection Cabinet, 906 S.W.2d 364, 367 (Ky. App. 1995), citing 2 Am.Jur.2d Administrative Law, §§ 360, 361. Where the Cabinet has not given a provider notice that a lawyer must file the request for hearing, the provider is denied procedural due process.
do two things (a) Appeal to circuit court any dismissal based on the Cabinet or
a Hearing Officer’s claim that a lawyer should have filed the request for
hearing; and (b) Demand that the state make clear when a lawyer is required in
an administrative hearing.
It’s beginning to smell a lot like the holidays at my house, and my office, and even in my car where a little gravy spilled as I was loading supplies to take from one place to another.
You see, Thanksgiving for us encompasses fifteen or more people, relatives that joined us by blood, by marriage, and sometimes by just being there one day when I needed a . . . cousin, sister, or child to add to the fold. It encompasses our house, where we host breakfasts and dinners and the times when we need to sit on the couch to gossip, snuggle or watch cheesy old movies. It encompasses my office, where the rooms are big enough to hold two giant tables and twenty chairs and still offer room to maneuver around everyone to get to the kitchen and back. It uses two fullsize ovens and a convection oven, a microwave, a stove, and a couple of really cool giant catering food warmers that I got at the humane center thrift shop this summer. It encompasses drop in visits to my daughter’s dance school KDA, where we catch glimpses of students rehearsing for the Nutcracker and marvel at Amanda’s patience and enthusiasm. It encompasses house hunting all across town because at heart I’m from Eastern Kentucky and want nothing more than to have everyone I love living within an easy drive. It encompasses calls and emails to those who are away to share why they are missed and how much we love them. It encompasses laughter, and occasional tears, and always a surprise baby who shows up in the arms of a friend or relative to join us – because it really isn’t a holiday without a baby to make much of.
We all snatch time to work between visits. Standing in the chilly outer hall of the Governor’s Mansion I answer calls while the rest of the relatives tour the ballroom. Running up the Annex stairs to grab a quick meeting with a Senator and then joining the Capitol tour at its triumphant third floor finish, heels clacking on the marble to announce to my aunt that I’m back. Lawson types Chinese with one hand while keeping an eye on the roasting turkey. Pierce sands furniture legs and grills burgers out back. Amanda putting her arms around us for a hug while reminding her dancers “Point your toes!” Work-life balance is never more challenging or more fun than in the holiday season.
This time of year living in Frankfort is amazing. In the rest of the state people are going about their daily business. But here, here we click on the LRC (legislative research commission) website every day to see what new bills have been filed. We harass the Department of Medicaid asking when, WHEN???, will we get to see the new telehealth administrative regulations. We turn our televisions to KET to walk the legislature in committee meetings as they hear from citizens, and we see the Governor out walking in front of the mansion. The lights are going up along Capitol Avenue and we are all waiting for the floral clock to be decorated. It is such a joy and a blessing to live here, where government’s heart is, and to be a part of the preparation for next legislative session. The new laws are coming, and we get to be part of seeing them emerge. What could be more exciting or more of an awesome responsibility? Stay tuned for 2019!
As a parent, you look at that little being God has placed in your life and with everything you have, you swear to protect it. That passion becomes the constant thrum behind everything you do and everything you say. A second heartbeat as reliable and steady and strong as the one that keeps your blood pumping.
Today more than a hundred parents faced their worst nightmare, and many of our beautiful children lost their lives.
Why does this one hurt me deeper than the other shootings? I tell my son it’s because I have “my” LGBT children whom I have care for all these years. I tell my husband it’s because I spent so many nights, before I met him, dancing and laughing and drinking at nightclubs with the waiters from the restaurant in the wee small hours after we got off work each weekend. I tell my mother it’s because I am the oldest, raised to physically stand in front of those younger and smaller than me so I can protect them. But only my daughter sees through me to the core and knows. I will, for as long as I live, be a mother who hears that imaginary bullet whine across the room towards her child and knows that there is nothing at all I can do to stop it.
This one cuts to the bone because when it comes down to it we are rarely there when we’re needed. We make such big promises and even as we make them, we know they will go unfulfilled. We weren’t at the door to tell the shooter no and take the gun from his hands. We weren’t there to cradle those who made it out and look back in fear. We don’t wait at home for the first responders, to rub their backs as they relive the nightmares. And we won’t hold the hands of those bereaved loved ones as they take the first fragile steps into their new reality.
“Stay safe”, we breathe to our infants, whispering the words into ears as tiny and opalescent as a shell. “Wear your swimmies”, we tell our toddlers, cramming pudgy arms into the inflated rings. “Wear your helmet”, we lecture our schoolchildren, tightening the buckles under those soft chins. “Wear your seatbelt”, we remind the teens as we hand them the keys and watch them swagger out the door.
But this, this is something we don’t have a magic charm for. How do you stay safe against hate, against misguided religious fervor, against the cruelty of children to immigrant schoolmates and of older folks railing against change. How do you stay safe against words and bullets, guns and fists, lies and anger. These are not new weapons. There have been massacres as long as mankind has had the power to kill. These are not new fears. People die the world over from these selfsame actions and have done so for as long as we’ve had history.
So I will tell myself, and my children, my mother and husband and friends, we can’t stay safe. That isn’t working. Instead, let’s wear our hearts openly and in public. Stand up like my Godson and tell your teammates those “jokes” are not okay. Send an email, like the head of the prayer chain at church, that reminds us all that we are a faith that is inclusive, not exclusive, and that God is not an emissary of hate. Reach out, like my daughter, to remind people that guns kill, that mental illness kills, and that each of us has a duty to make sure there is less of both in the world each day. Wear your individuality and grace with pride, like my “adopted” sons. Have the courage to put out your hand to protect a pet, a child, or someone more helpless than you.
So today, even as I send the impossible plea “stay safe” to the young people in my life, I promise those who didn’t that I will remember, today and every day, to wear my heart on the outside. That it is my job, and all of ours, to be kind and brave and good. That is all we have against the dark, and we must all use it so that someday, somewhere, someone will make the difference that matters.
Saturday, June 4:
We are a technology-dependent society. We use our smart phones, tablets, and other devices to quickly and easily access information, engage in financial transactions, and perform vital job functions. Healthcare providers have used advances in technology to enhance patient care. A doctor at a huge metropolitan hospital in an urban area can now see and treat, in real time, a patient at a rural site hundreds of miles away. In a miracle of modern medicine, even patients in remote areas can thereby receive cutting edge treatments.
But there is a problem. As the applications of technology and the skills of its users advance, the payment system sometimes fails to keep up. While many states have laws providing that telemedicine should be paid for just like face-to-face services, because that is essentially what telemedicine is, some payors don’t yet have codes that cover these services.
Changing Medicaid reimbursement and updating Medicaid fee schedules has been likened to turning the Titanic. Provider skills and the practice of medicine advance quickly, driven by patient needs and the available tools. Patient care does not suffer, because providers are quick to use new abilities to better treat people. Rather, it is the providers who suffer. A doctor is unwilling to require a fragile patient to leave her home and drive hours to the hospital for a required check-in visit when she can simply use a smartphone or computer to best treat her. So the doctor does what is best for her patient, and simply goes unreimbursed for those services. That is not the intent of the law, and it shouldn’t happen.
In 2015 the Center for Medicare & Medicaid Services (CMS) added seven new telemedicine billing codes to the physician fee schedule. The new codes include those for prolonged office visits, psychotherapy, and annual wellness visits. The CMS has also added a new Current Procedural Terminology (CPT) service code, 99490 for chronic care patient management in the final rule. This code is not a telehealth code and it can be bundled with the existing CPT code 99091 for collecting and reviewing patient data that does not require the beneficiary to be present; though, the CMS will still not allow any additional payments for this service.
While CMS has expanded Medicare coverage for telemedicine as long as the services are provided in a hospital or SNF setting, see: https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/downloads/TelehealthSrvcsfctsht.pdfstate Medicaid coverage has not always kept up with these changes. And even CMS won’t pay for direct to patient services, where the patient is at a location other than a hospital.
Telehealth treats patients in real time, where they are located. That is simply good medicine. We need to work with payors, particularly state Medicaid departments, to make sure that providers can be paid for all the work they do and that codes exist to make this possible. That’s the best way to keep medicine moving forward, particularly for our state’s most vulnerable citizens, the Medicaid and Medicare population.
My son and I played hooky one morning and went to see the horses work at Keeneland. There were maybe 20 visitors on the entire grounds. We wandered through the paddocks and saw horses learning how to walk in the warm-up ring and then through the tunnel onto the track. The sun was rising, planes were taking off in the distance, and a million chirping birds flew to and fro.
Then we stood on the rail for a couple of hours and saw dozens of horses go through their various workouts, from the nervous two year olds jigging around with experienced exercise riders and ponies, to the high dollar stakes horses being timed in a flat-out gallop. We saw some gorgeous horses and some really, really fast works. Lawson had his stopwatch and timed a few. Some of the fanciest sprinters do their real works on the far side, so you can't time them, but many hit their fasted speed so they end at the finish line in front of the grandstands, which is incredibly cool.
Many of the riders talk or sing to their horses. English, Spanish, French – we heard it all. Whispers of encouragement to a horse that thinks it has hit top speed. Lullabies to soothe fractious colts. Chortles and whistles and clucks galore. The track is a noisy place. You never expect to hear exercise riders, galloping three astride, to be talking to each other about dates, friends and musing on life as if they were out for a quiet stroll. That really surprised me.
Then we wandered past the barns, watching horses be bathed, groomed, tacked, fed, or even being ridden through the aisles for exercise. My favorite was a stable washing three horses at a time. They had it down to an art, arcing the hose across backs and sponging legs in quick succession.
Next we made a pit stop at the track kitchen to have enormous bacon and egg sandwiches with a rotating crew of jockeys, trainers and owners. Even my jaded son was pretty impressed.
Left the house at 6 a.m., was home by 9:30 and at a desk in lawyer clothes by 10, nobody the wiser.
It was truly incredible. We are definitely doing this again. No entrance fee, nobody around, just you, the horses, and the people who work with them. Unbelievably wonderful.
If you all are ever in Lexington overnight, it is totally worth getting up early to do this. Keeneland is a state treasure and this was just so peaceful and exciting, both at once.
When you think of the lawsuits that decide whether a candidate for public office is qualified under the terms outlined in state law, you probably envision those cases taking place in front of cameras in one of the fancy new courtrooms in one of the state’s biggest cities. Maybe in Louisville in the imposing Justice Center, in front of a judge we have all seen on the news before. And that is what I planned for the most recent candidate qualification case I handled. Jefferson Circuit Court, media ready to come watch, local concerned citizens attending and giving input.
But in fact, the case was transferred to a small regional courtroom. The judge is better known for being informal and decisive than for her TV appearances. The courtroom is so old that the ten-foot-tall windows still had original glass, wavy now with years of temperature changes so that the view of the small town outside was slightly distorted, as if reflected in a wading pool. The air conditioner in the hall was off, a paper sign stating simply “broke”, taped to it. Outside the district court clerk’s office, a young mother handed a toddler a can of pop, and a man with a pomaded coif read the paper. This could have been any courthouse in any Kentucky town at any time in the past five decades.
I had a hard time determining which of the four historic buildings in the town square actually housed the courtrooms. Every building was open to the public. Each of them had a desk downstairs where a sheriff’s deputy or two kept an eye on those coming and going. An older gentlemen sat at the entrance, chewing tobacco meditatively and looking down. People hurried in and out, on court business, or registering cars or taking papers to various offices. Some of the doors were slow to close and a breeze scented with the blooming trees outside crept in, softly flavoring the air.
It was time to start. And so we sat at the bench, five dressed up lawyers, two serious clients, and some witnesses. We waited for the hearing to begin. I am antsy before every hearing, jiggling my foot and lining my pink folders of papers up, just so, over and over. Opposing counsel puffed up his chest, made a neat note on his legal pad, and slapped down an imposing file of case law. We both thought we were so important and we were so full of desire to fight and to win.
The judge came in, sat down, and began to speak. Her voice trembled with passion and sincerity. This is a serious case, she reminded us, and our job here is also important. Voter rights means a lot to me. Candidates who want to serve the public are the bedrock of our communities. We change lives with these decisions.
And in that moment, the focus changed. This wasn’t, “Hey, that guy has more case law than I do.” It wasn’t, “Take that, I’m now the only valid candidate.” It was, instead, “We are all on a mission, and that mission is to make sure that, to the extent possible in the lives of we flawed humans, we are doing the right thing in the eyes of the law and in the eyes of the public.” The judge was right – this was an significant case for that important reason. We are so lucky to be able to run for office freely and without fear. We are so blessed to be able to speak our minds in politics and to vote our hearts at will. We forget what an incredible gift this is and that not every citizen of the world has these same opportunities. When you go to the polls next Tuesday, take a moment to thank everyone who made this possible for you. This is, as that wise judge reminded us, an important job.