When the Affordable Care Act bumped up Medicaid primary care payments to Medicare levels during 2013 and 2014 to incentivize care for the poor, of Memphis eagerly signed up.
With the extra $400,000 his practice received, Rodney opened an outreach clinic for bilingual uninsured and expanded hours to weekends. He also provided x-rays and ultrasounds, and upgraded other services at his four clinic sites in medically underserved Tennessee.
Now, with what he calls "a bitter pill" that has further increased his distrust of government, federal officials and the Tennessee Medicaid agency, TennCare, say he must pay all that money back.
Soon, he anticipates, TennCare will "stop paying us for our current billings, and choke off all our cash flow."
Rodney is one of 118 doctors -- most practicing in rural areas with high numbers of low-income patients -- who Tennessee and federal officials say must refund $6.5 million in pay bump money because, according to the fine print in Medicaid's rules, those physicians are not bona-fide primary care providers. Mid-level professionals must return another $438,209.
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of Shelbyville, is another doctor among the 118 doctors affected. He used the money to start a clinic in Lewisberg to augment care to 35,000 patients a year but now must pay back more than $300,000.
In rural Brownsville, Claudia White, wife of and office manager of his practice, said they used the money to increase visits and buy equipment, but now must pay back more than $426,000.
And also in Brownsville, is being told to return $200,000. "This is just one of the most unfair things I've ever seen," Dowling said.
These physicians failed to understand terms in documents from the Centers for Medicare and Medicaid Services (CMS), explained Katie Dageforde, assistant general counsel for the Tennessee Medical Association, which is fighting the issue on the doctors' behalf. Dageforde characterized the CMS language as confusing and unfair.
Moreover, primary care physicians in other states may soon find themselves in the same crosshairs. TMA officials suspect that Tennessee may have started federally-mandated audits earlier than other states.
Not Board Certified
CMS officials disagree, saying in so many words that it's "unfortunate," but these Tennessee doctors skipped over the details on who, and what services, qualified for the additional pay.
First, CMS rules specified that Medicaid providers had to be board certified in internal medicine, family medicine or pediatrics. These doctors weren't, in part because in rural areas, hospitals often don't require board certification and, for older doctors, it wasn't a mandate after training.
Second, for doctors without board certification, their status as primary care providers could be documented if 60% of the codes they submitted in their claims were for a select set of primary care evaluation and management (E&M) or vaccination services, not specialty services.
TennCare, apparently the first state to audit these claims for 2013 and 2014, reviewed claims for all non-board certified doctors who got the pay bump, not just a sample as reportedly was done in other states.
Those doctors failed the audit because more than 40% of their submitted codes were for ancillary services like urinalysis, which is a pathology code, or an x-ray, which is a radiology code -- not E&Ms or vaccinations, and thus not primary care, according to CMS's rules.
That's an absurd requirement, said Rupard. "In primary care, if you do in rural areas what I do, you're doing everything in house. I won't send you down the street to get your EKG or your blood drawn because here, we don't even have those places to send you to."
"If we didn't provide some of these ancillary services to our patients, we'd be practicing terrible medicine," Dowling complained. "If a diabetic needed a blood sugar and urinalysis, we were only 33% in compliance. If someone with a sprained ankle needed an X-ray, we were only 50% in compliance.
"Basically, there was no way I could practice good medicine and be compliant."
Moreover, affected doctors like Dowling said they thought the 60% referred to the percentage of billed charges for Medicaid patients, which was what was required under the Medicare Primary Care Incentive Payment (PCIP) program in effect in 2012-2013, not billed codes. But the pay bump program's rules were different.
The TMA and these affected doctors didn't recognize it until late in 2015, 8 months after the pay increase ended, when TennCare audited nearly 1,000 doctors who had received the bump but weren't board certified.
The TMA has argued on these physicians' behalf, saying these pay backs "will have a significant negative impact on legitimate primary care providers who may not be able to survive as a result," Dageforde wrote in an to CMS acting administrator Andy Slavitt.
Dageforde noted that the intent of the that authorized higher Medicaid payment was to primary care providers to continue to treat Medicaid patients, whose care was reimbursed at only 66% of Medicare rates.
Was Tennessee More Aggressive?
Additionally, the TMA suspects that Tennessee's audits were more aggressive than elsewhere, because they've not been able to confirm similar issues in other states. "Either Tennessee is ahead of the game, or TennCare's audit used harsher calculations than any other state Medicaid agency," Dageforde wrote.
The federal agency's was deflating.
"While we regret the impact this is having on your providers, it is not possible to retroactively change the qualifying criteria and the state appears to be properly applying the criteria in identifying providers who were not, in fact, eligible for higher payment under the Federal rule," wrote Jackie Glaze, associate regional administrator for CMS's division of Medicaid & Children's Health Operations.
Glaze added, "While both programs [PCIP and the Medicaid pay bump] used 60% as a threshold, eligibility for higher Medicaid payment [the Medicaid pay bump] was based on 60% of total codes billed, while eligibility for the Medicare payment [PCIP] was based on 60% of billed charges," she wrote.
Although recognizing a financial hardship for these doctors, "we cannot overturn the state's audit or require the process be delayed," Glaze wrote, suggesting that doctors consider payment plans instead.
She affirmed that in a January 19, denying TMA's request that it factor only codes for physician services submitted in claims rather than all codes submitted to determine the appropriate denominator for the 60%. "I regret that our response could not be more favorable," she wrote.
That's prompted a lot of frustration, and cries from older doctors that they might retire or stop treating Medicaid patients.
Unintended Consequences
"I might just quit rather than pay this money back, I'm pretty upset about it," said Rupard. "I invested most of the money in order to get one of the clinics up to modern standards. I'll have to borrow the money to pay it back."
At a June meeting of the American Medical Association's House of Delegates in Chicago, O. Lee Berkenstock, MD, of Memphis, asked for "a call to action" to unite AMA physicians to oppose any use of board certification -- an increasingly controversial issue -- to determine any doctor's level of payment.
Although his resolution was referred to an AMA committee for a report in November, he cautioned his colleagues in other states they should be very concerned. Tennessee, he said, appears to be the first state that has aggressively audited every single non-board certified doctor who received the pay bump.
"I would remind the House that this is no longer an academic issue," Berkenstock said. "At least other state delegations and associations can go ahead and be on the lookout for this."
Board certification is a third rail for many older doctors like Rodney, who is 72. At that time post graduate training was not required for licensure and board certification was not a criteria for hospital privileges. Additionally, some doctors said they resist certification requirements because they don't feel they need an exam to prove they can do what they're doing every day.
Added Rupard, "When I finished medical school, board certification was a novelty thing; most people didn't do it. In rural areas, you didn't need it. It gave you no benefit."
Besides, he said he is too busy taking care of patients days a week: "It would be too much of a distraction. And I'd have to go out of town to take the test."
For Rodney, the consequence is closure of his Nashville clinic.
He said that, instead of asking him to pay the money back, TennCare and CMS should show some gratitude. "We have 86% Medicaid and most of our patients don't speak English ... . What we get instead is, 'you're not providing primary care, give us the money back.'"
Rodney wonders if maybe Tennessee doctors are being punished for political reasons. "Maybe, because Tennessee is a non-Medicaid expansion state, it may be one reason we're singled out," he said. "We didn't play ball with Obamacare."
Promise, Then Disappointment
For Dowling, it seems like a reversal of the Obamacare promise to encourage better care for Medicaid beneficiaries.
"A lot of doctors here did not want to take Medicaid because it paid so poorly," he said. "TennCare paid $38 for an average visit, while Medicare paid $70 and insurance higher than that. So we were very excited that we were going to get this increase for at least two years."
Dowling also noted that the federal rule appears to be penny wise and pound foolish. An EKG in his office, or a blood test to rule out acute myocardial infarction, the bill may be $200. But if he sent the patient to the hospital for the same tests, "it would be $2,000 or more. It saves Medicaid a huge amount of money for us to do these ancillaries."
Ironically, Dowling said, if he'd understood the fine print he could have creatively adjusted how he submitted claims, as he subsequently learned other non-board certified providers routinely did.
He could have shifted non E&M and vaccination code claims to his corporation's NPI number. "Then I would have had 100% of my codes as office visits. It's just paperwork accounting that would have made me completely compliant if I knew that's what they wanted," he said.
In a to Slavitt, eleven members of the Tennessee Congressional delegation objected to the recoupment, saying it will force doctors away from taking Medicaid patients and warning that doctors outside of Tennessee will be adversely hurt.
"We believe other states may not have completed their audits of the enhanced payments and may experience similar findings of physicians being out of compliance with the threshold," they wrote.
In his , Slavitt wrote, "It is unfortunate that these providers were not fully aware of the qualifying criteria set forth in the regulation. These criteria were crafted to ensure that the higher payment went to all primary care physicians who actually practice in the statutorily identified categories."
Appeals Still Underway
The TMA has had some success in blunting the blow. Originally, 400 physicians received recoupment letters, but for about 250, those audits were in error. And total physician overpayment originally estimated at $7.5 million has been reduced to $6.5 million because of some auditing technical errors, according to the TMA.
Efforts are still underway to broker a deal with TennCare to minimize the hit. Of the 118 doctors being asked to pay money back, about 31 have filed independent appeals, according to attorney Alison Grippo of the law firm Bass, Berry & Sims PLC in Nashville. A hearing before an administrative law judge is scheduled for September.
The remaining providers may be asked to pay back smaller sums, and have opted to wait for the appeals process to play out, Dageforde said.