Medicaid – A Full Analysis
Private Contract – Is it lawful for a DPC physician to privately contract with a Medicaid patient for covered services?
Usually. Unfortunately the recent changes to Medicaid in the Affordable Care Act (which apply even if your state did not expand Medicaid) make this question difficult to answer. Unlike Medicare, where physicians need to take the active step of “opting out” so that it becomes legal to privately contract with patients for “covered services,” in the case of Medicaid if you have not formally “signed up” then the assumption is that you are not enrolled in the program and thus you are free to privately contract with Medicaid patients for covered services. There are state law exceptions to this general rule, and Kentucky is one of the most egregious examples (where a former Governor’s executive order made it illegal to privately contract with Medicaid patients in any form). Be sure to do your homework! AAPS had an excellent Q&A exchange with CMS in 2014 where CMS made it clear that they currently think there should be no problem privately contracting with Medicaid patients. Other states like Missouri have made it clear that these types of private contracts are permitted.
Ordering Tests, Medications, and Referrals – If I have not “signed up” with Medicaid will my orders be filled?
No. This is one of the ACA changes. 42 CFR § 455.410(b): “The State Medicaid agency must require all ordering or referring physicians or other professionals providing services under the State plan or under a waiver of the plan in the fee-for-service program to be enrolled as participating Medicaid providers.” This is discussed in more detail in this CMCS Informational Bulletin.
If you are not enrolled in Medicaid then the state will pretend that you do not exist (just like if you were an out of network (HMO) physician) and the state will require that these orders be placed by a Medicaid enrolled physician. Some DPC physicians simply ask the patient to have a back-up physician they can go to in the event the patient wants to use the “system” for a lab test, prescription, referral, etc. The DPC physician would make the patient aware of the order and then the patient could make a separate appointment with a traditional Medicaid accepting physician to request that this second physician agree with the original DPC physician and place the same order. This is obviously a less than ideal solution.
Should I “sign up” for Medicaid?
Ideally your state will have an “Ordering and Referring Only” provider status, and theoretically this is your best option. This status is described in detail in this CMS document. This status was contemplated federally for physicians that want to be “known” to Medicaid but do not plan to bill Medicaid in any way. A few states (such as Ohio) have developed new enrollment forms for this new category, and some have obvious conflicting language in these new forms (such as Texas).
What if my state does not have an “Ordering and Referring Only” status? May I “sign up” and still privately contract?
This is unclear. I did a detailed investigation in Wyoming, but I have not received any official responses from state administrators (despite repeated efforts) about whether my interpretation is accurate. Here are the more important portions of my investigation.
In the Wyoming Medicaid Provider Manual on page 3-6 the box contains examples that I believe clarify the legality of the model I would like to pursue, namely:
If the patient is “FULL COVERAGE or LIMITED COVERAGE Medicaid Program and the provider does not accept the client as a Medicaid client” then… even if the service is covered by Medicaid, then “Provider can bill the client if written notification has been given to the client that they are not being accepted as a Medicaid client.”
Some of my unanswered questions – if I enroll as a Medicaid provider, and then see Medicaid patients under private contract without “accepting” them as Medicaid patients, will their be any difficulty with the patients filling prescriptions, lab orders, etc? I know that each Medicaid patient will have a designated PCP, and I wonder what that means. Would I (or could I) be anyone’s designated PCP and does that matter from an ordering labs/meds/radiology/referral standpoint?
The language at the bottom of page 3-10 about when a provider “may bill a Medicaid client” is concerning because it does not contemplate my exact scenario.
This CMCS Informational Bulletin has some helpful Q and A.
Consider the Question at the middle of page 14 where the following sentence is included in the answer:
“As we indicated in the final rule, Federal Register, Vol. 76, dated February 2, 2011, to accommodate such charity care providers, States may establish a streamlined enrollment approach for providers whose only relationship with the Medicaid program is ordering and/or referring services. This streamlined enrollment process could be similar to the Medicare CMS-855-O, which allows a physician or non-physician practitioner who does not submit claims for services provided to Medicare beneficiaries to enroll in Medicare solely for purposes of ordering and referring.”
Another unanswered question based on the quoted language below (taken from the middle of page two of the Wyoming Medicaid Provider Manual) – Are there any creative definitions of a “risk-based managed care plan?”
“[I]f a physician is ordering or referring services for a Medicaid beneficiary in a risk-based managed care plan, the provider enrollment requirements are not applicable to that ordering or referring physician.”