A Game So Nice I’ll Play it Twice

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New to this website? Welcome! If you’re looking for the story about my last three months at Kaiser, fighting the system from the inside out, you can find all the posts in order at the tab “The First 90 Days (Reader’s Edition).” Happy reading!

I’ve launched a second ninety day campaign to reform the delivery of mental health services at Kaiser. After a rejuvenating summer, I jumped off the fence to organize a new wave of challenges to the current system of care. While the first “90 Days” might be seen as a primer for fighting an institution from the inside out, the next segment (from October 2014 through New Year’s Day), will, if I’m lucky, demonstrate how one person can make a difference from the outside.

Now that I’m no longer an employee of The Permanente Medical Group (TPMG), and am no longer a card carrying member of the National Union of Healthcare Workers (NUHW), my perspective on the global deficits in Kaiser’s mental health program has changed. Now I’m a concerned member of the community — we all suffer when the number one provider of mental health services in California delivers less than adequate care. I speak also as a private therapist who sees the fallout of poor treatment in my Kaiser member clients, those who paid their premiums through their employer, privately, or through the Medicare or Medicaid system. I speak as a payer of state and federal taxes, subsidizing these substandard, federally- and state-funded mental health programs.

On September 9, 2014, moments before they were slated to argue their case in front of an administrative law judge in Oakland, Kaiser dropped its appeal of the Department of Managed Health Care’s $4 million fine. (The fine, if you recall, was levied for delaying access to initial mental health appointments and for discouraging members from seeking services, e.g. by telling them that Kaiser doesn’t offer individual psychotherapy.) Just as remarkably, Kaiser has begun to develop protocols to subcontract the overflow of psychiatry department intakes to a behavioral managed health care group, ValueOptions.

These are incredible developments! In the first case, Kaiser lawyers must have withdrawn because they knew they couldn’t prove Kaiser mental health administrators had responded to the DMHC’s allegations sufficiently or quickly enough. And, by subcontracting mental health services to ValueOptions, Kaiser is admitting that they are unable to do the job without hiring more help. That, in fact, they are understaffed. Which is what therapists have been shouting for three years now.

This is no time to take the pressure off! As a corporation, Kaiser will spend as little money as possible appeasing state regulators. They will continue to need their feet held to the fire if they are going to implement meaningful change.

So, whether you’re inside Kaiser, fighting to get your clients the basic help they need,  or out, trying to improve the mental health of our entire community, let’s keep this mighty ball a-rollin’!

(90 days (or so) to go.)

Medicare Refresh

I decided it might make sense to hone my argument about why I believe the inadequate mental health services provided by Kaiser constitute Medicare fraud, and to email and snailmail my honed argument to Belinda Cross at Health Integrity. So here’s what I wrote and sent today. I incorporated what I learned from my conversation with Belinda on 11/13/14 regarding an annual process reconciling delivery of services with monies reimbursed. Even though there are big holes in my understanding of how the whole process works, it seems that those with a clearer understanding of the system will be able to fill in the blanks.

I am a former staff therapist who worked at Kaiser Santa Rosa’s Medical Center in the Psychiatry Department, starting in September 2006 and ending almost eight years later when I was escorted from my office in retaliation for whistle-blowing in May 2014. As a steward for the union of Kaiser’s psychotherapists, the National Union of Healthcare Workers, I was privy to information about policies, procedures, and their effects at Kaiser medical centers beyond Santa Rosa — throughout Northern and Southern California. And I believe the same policies that operate in California are in place at Kaiser medical centers throughout the United States which leads me to believe that the fraud I am reporting here is operating on an enormous scale.

My belief that The Kaiser Medical Group (TPMG) has defrauded the Medicare Advantage program is based on a partial understanding of how Medicare reimburses Kaiser. I will describe my experience with clinic policies and leave it up to you to assess if you believe, as I suspect, that there is a strong case for fraud. My understanding is that if there seems to be a strong case, then you forward your information on to the Office of Inspector General for further investigation.

Starting several years ago, therapists and psychiatrists in the Psychiatry Department in Santa Rosa were instructed to fill out a form known as “Medicare refresh” whenever the form appeared in our mail boxes. The form listed one or more diagnoses. Therapists had been instructed to check a box next to each diagnosis, verifying that the patient would be continuing to receive treatment for the diagnosis listed. Sometimes the forms contained “physical” diagnoses, like Hypertension. Therapists in Santa Rosa were instructed to comment on mental health diagnoses only. The most common diagnoses that we “refreshed” were Major Depression and Panic Disorder.  About a year before I left work for Kaiser, a more thorough training was given regarding the Medicare refresh process. In addition to filling out the paper forms, we were instructed to chart in each patient’s electronic medical record a plan to treat the conditions being refreshed.

My understanding is that these forms are part of a system that Kaiser uses to get reimbursed by Medicare Advantage for medical conditions that raise patients’ “risk scores.”  I further understand that there is a “reconciliation” process by which Medicare auditors review a sampling of cases in order to ensure that patients with higher risk scores are receiving diagnosis-specific treatments for the conditions that raised their risk scores. The reconciliation process implies that Medicare auditors compare treatment provided (services rendered) against a standard of care for each diagnosis.

If there is any standard of care expected for treating mental health conditions, I believe it is not being met by the behavioral health system in place at Kaiser in California. It appears fraudulent, therefore, that Kaiser accepts these payments for services never or only partially rendered.

Throughout my tenure at Kaiser, treatment of mental illness has been inadequate in at least two significant ways:  (1) markedly poor access to primary individual therapists and (2) an over-reliance on group programs. These inadequacies contradict the assumption (in the Medicare refresh process) that effective treatment plans for mental health patients are in place.

Markedly Poor Access to Primary Individual Therapists

Throughout my years at Kaiser in Santa Rosa, the waits between appointments with a primary individual therapist were, on average, 4 weeks, regardless of the seriousness of the patients’ symptoms. In the last year I was there, these waits got even worse in Santa Rosa, averaging 6 weeks. I was able, through my activities as a union steward, to confirm an average of 4-8 weeks between appointments with primary individual therapists across California and across conditions being treated. Due to the intervention of the California Department of Managed Health Care (DMHC), the amount of time a new patient currently waits for an initial appointment has in some medical centers improved. But according to my colleagues still at Kaiser, waits between follow-up appointments after that initial screen continue at their historical, unacceptable level.

Over-reliance on Group Programs

Kaiser has attempted to defend their short supply of individual therapy appointments by stating that their group programs provide better care than individual appointments. And this might be true, if it weren’t for the fact that most people do not attend the groups. Over the almost eight years I worked at Kaiser, the drop out rate for the groups addressing the two most often reimbursed categories of mental illness, Panic Disorder and Major Depression, had a drop out rate of 75%. That means that three out of four patients drop out of treatment between the initial referral to the group and the group’s final session. Without proper support from an individual therapist, the vast majority of patients do not complete the treatment plan that Medicare is reimbursing.

In summary, Kaiser is being reimbursed by Medicare to provide the additional resources necessary for treatment of certain mental health conditions. Therapists and psychiatrists are by rote signing off on the paperwork supporting this system. Therapists are unified in asserting that the supply of individual therapy hours is woefully inadequate to provide meaningful treatment and that group programs are only effective for the small percentage of patients that complete the programs. Under pressure from the DMHC, Kaiser is starting to increase its supply of individual therapy hours. It will be quite some time, however, before supply meets the ever-increasing demand.

Medicare Advantage should be refunded all the monies paid over the years to Kaiser for treatments promised through the risk score process but not provided. Future reimbursements for mental health conditions should be withheld until the supply of therapists is adequate to treat those conditions being reimbursed.

(38 days to go.)

Does Kaiser Advantage Have Integrity? Belinda’s on the Case

Today I sent the following email to Belinda Cross, the supervisor at the NBI MEDIC contract agency Health Integrity, (see my November 13 post, immediately below):

Hi Belinda,

Thanks for spending so much time with me on the phone last Thursday!

I hope I made it clear that I have a large personal investment in changing the Kaiser mental health care system for the better. I was a therapist in the psychiatry department of the Santa Rosa Medical Center for eight years ending in May 2014. I resigned my job because I was unable in good conscience to continue accepting payment for providing inadequate care. I am pursuing the claim of Medicare fraud because I believe that with the correct leverage from all available sources, Kaiser will change course and provide parity mental health services, as required by state and federal law.

On my way out of Kaiser this past spring, I blogged my efforts to change the system at 90daystochange.com. If you haven’t yet, please read this blog for clear documentation of my assertions. I have many colleagues, Kaiser therapists throughout California, willing to corroborate what I’ve written on my blog for your investigation of Kaiser Advantage fraud regarding Medicare recipients with mental illness.

I’m also telling you about my blog because I continue publicizing my efforts, including my contacts with you at Health Integrity. So far 90 Days to Change has had about thirty thousand visitors — primarily Kaiser therapists, managers, mental health clients and the media, including national and international reporters. This visibility contributed, I believe, to Kaiser’s eventual agreement to pay the California Department of Managed Health Care’s fine AND to Kaiser’s decision to start contracting with ValueOptions for therapist services to supplement their in-house staff.

Since transparency in government is a value I suspect that you and your agency subscribe to, I didn’t think you would object. But I also felt it fair to alert you that I am still blogging. This email will be today’s entry.

During our phone conversation last week, you agreed (1) to send me by email a list of quality assurance agencies within CMS and (2) to check with your colleague about the annual reconciliation  process for Kaiser Advantage members with mental health diagnoses that increase their risk scores.

While Kaiser claims that members identified with parity diagnoses (like Major Depression or Panic Disorder) are provided specific follow-up care through outpatient psychiatry clinics and/or behavioral health specialists, aside from an initial visit for evaluation, follow-up care is nearly non-existent. As I let you know on the phone, Kaiser Advantage members, regardless of severity of diagnosis, can only meet with their primary therapist on average once every one or two MONTHS. By comparison, Medicaid clients in California are covered to see a private therapist in the community at least once a week until their mental health condition resolves — indefinitely if it doesn’t.

Thanks again for the initial conversation. I look forward to hearing from you soon.

Andy

(43 days to go.)

Taking it to the Feds

A month ago I submitted an on-line report of suspected Medicare fraud at Kaiser using  the Medicare.gov website. I was not expecting any response beyond the automated email confirmation of receipt I got immediately. Imagine my surprise, then, when a snail mail letter dated October 23, 2014 indicated that a contract agency, Health Integrity LLC, was following up on my report. It said: “Your information will be reviewed and you will be notified of the results.” The letterhead indicated Centers for Medicare and Medicaid Services (CMS) and the letter was signed by a Complaint Specialist from the National Benefit Integrity Medicare Drug Integrity Contractor (NBI MEDIC).  The website for NBI MEDIC indicates that they investigate claims of fraud, including Medicare Advantage fraud. So it seems my complaint had fallen into the appropriate hands.

A week later I got another letter from the same agency, reporting: “After researching and reviewing your complaint, the NBI MEDIC has determined that issue has already been resolved by another agency therefore, your complaint will be closed and tracked in our database in an effort to identify trends with the subject of this complaint.” The letter was signed by Lisa Carson, Complaint Specialist. Of course I called up Lisa immediately. She called me back within a day, while I was on a hike with my dog Apollo in the redwoods. She let me know that the other agency, the one that had “resolved” Kaiser’s mental health care issues was the California Department of Managed Health Care (DMHC). But she knew nothing further and was not part of the investigation. She did, however, willingly pass on the name of her supervisor, Belinda Cross, and told me she would have Belinda give me a call to follow up.

I just got off the phone with Belinda who took the time to explain her agency’s role in investigating claims of Medicare fraud or abuse. She let me know that my on-line complaint started at the Office of Inspector General for Health and Human Services (OIG). It was sent to Health Integrity to see if the case has merit. If it does it will be returned to the OIG for further investigation, and, if appropriate, on to the Justice Department to pursue a remedy for the fraud. Otherwise, they’ll put my complaint in a database in which similar claims may add up eventually to a case. Then it will be forwarded to the OIG.

I told Belinda that the DMHC’s investigations and fines have, to this point, only addressed initial access to psychiatric care. How waits between visits with individual therapists across California Kaisers are 4-8 weeks. And how Kaiser bills Medicare for diagnosis-specific treatments, including Major Depression and Panic Disorder, without providing adequate treatment past the initial assessment. After a pause Belinda volunteered to investigate further, without saying she was re-opening the just-closed case. She told me she had an associate who knows more about “annual reconciliation” — a process I didn’t know existed prior to our conversation. My guess is that annual reconciliation means that once a year Medicare looks at Kaiser Advantage members who receive additional funds for expensive medical conditions (see my October 15 post) to make sure they got adequate services for the extra compensation.

If that’s the case, I would love to know how the review process operates for parity mental health conditions!

Belinda also encouraged me to pursue a complaint about quality of care with the Quality Improvement Organizations (QIO) arm of the CMS. Which indeed I will. She promised to email a link to the appropriate agencies to contact. But I’m also going to work with her to attempt to establish that Kaiser’s abuse of Medicare funds deserves attention at the OIG level. Considering the scale of under-staffing, the years that the abuse has continued, and the consequences to Medicare recipients, (past, present and future), the investigation deserves to go up the pike.

(47 days to go.)

STRIKE!

The California Nurses Association (CNA) and the National Union of Healthcare Workers (NUHW) are considering a huge conjoint strike some time in November. I wonder how they’re going to message the array of problems behind this action. Why am I concerned about the messaging? The Kaiser Medical Group (TPMG) has been fairly successful, throughout the 3-year-and-counting NUHW contract battle, in clouding the therapists’ message of poor quality mental health care in psychiatry departments throughout California. Kaiser spokespeople have been consistent, telling the media at every opportunity that therapists created a smear campaign to improve their position at the bargaining table; and that the foundation of the smear — poor client care due to long waits between visits — is a groundless manipulation. While therapists certainly are interested in a contract that keeps their benefits in place, they’re also interested in improving client care. I believe this two-part message, even after three years of delivering it, on the picket lines and in press packets, has been heard by the public only partially.

Nurses now face the same challenge therapists have been facing for years, getting their two-part message across. Kaiser’s contract with 18,000 CNA-represented nurses in California expired this summer. They are now bargaining to keep their benefits AND to keep appropriate staffing levels. In terms of benefits, Kaiser has made it clear that the takeaways offered to NUHW therapists in contract talks are being rolled out to all employee groups as their contracts come due. This fall, it’s the nurses’ turn to be offered these takeaways, and to protest or submit as they will. And in terms of cutting staff, Kaiser spokespeople are advertising that current staffing levels in the hospital are excessive and outdated, indicating they intend to change nurse to patient ratios in their contract offers. (Listen to the 10/17/14 NPR report by April Dembosky.)

It might be wise for union spokespeople (for both unions) to include an “and” in every statement they make to the press.  As in: we’re interested in maintaining benefits AND in maintaining quality patient care. Contracts can, of course, do both. Staff to patient ratios have, historically, been part of the nurses’ contract. This creates, for nurses and patients, a certain amount of protection against the HMO’s endless efforts to cut costs. By contrast, therapist contracts have never included a provision to limit the number of clients on a therapists’ caseload, nor one to contain group size. If it’s not in the contract, therapists cannot “grieve” understaffing through the collective bargaining process. Which is why the NUHW and other interested parties (like moi) have turned to HMO watchdog agencies, like the California Department of Managed Healthcare, like the US Department of Health and Human Services, instead of the National Labor Review Board, to fight for mental health parity.

Contrary to Kaiser public relations rhetoric, there is no contradiction between taking care of oneself and taking care of one’s clients. Kaiser spokesfolk continue to claim that in order to contain consumer costs something has to give — either patient care or staff benefits. But as long as the CNA and the NUHW remind the public of Kaiser’s massive surpluses (now in the billions of dollars per quarter), I believe the public will draw a different conclusion…

Maybe it’s Kaiser’s surpluses that have to give.

(Don’t get me started on CEO salaries. Did you know that the current CEO of Kaiser is not even a healthcare professional?)

I’m excited about watching this power struggle play out, and I look forward to joining my former colleagues on the picket line. We all need to do what we can to support nurses and therapists as they go up against the corporate machine. I’ll say it here, now, as a pre-amble to the festivities:

Thank you, health care professionals, for taking a stand for patient care AND you deserve just compensation for your hard work.

(64 days to go.)

Doctors v. Lawyers

At the same time as trying to get the agencies that oversee Medicare to penalize Kaiser into providing parity mental health care, I’ve been curious about the potential of medical malpractice lawsuits to force the same change. To that end I’ve been sending emails to personal injury law firms in the Bay Area that specialize in medical malpractice — some even advertise that they hyper-specialize in Kaiser cases. I’ve been offering my services as a consultant or expert witness. I think I can help lawyers develop an argument that the structure of mental health treatment at Kaiser puts all patients at risk. I can also guide them to the kinds of questions that will demonstrate how this faulty structure led to their particular client’s bad outcome, e.g. suicide, hospitalization, loss of a job or a significant relationship.

By bizarre coincidence, there’s an initiative on this November’s ballot in California to increase the cap on medical malpractice payouts. Since the relatively low cap seems a barrier to influencing Kaiser’s policies, I wrote an editorial in favor of raising the caps and sent it to the LA Times, the San Francisco Chronicle, and the Sacramento Bee. All three have declined to publish it. I’ll send it to the Santa Rosa Press Democrat today, but thought it might be helpful to post it here.

Here’s what I wrote:

With seven million members in California alone, Kaiser Permanente is the state’s number one health care provider. That makes them the number one provider of mental health care too. One painful truth about mental health care at Kaiser today is that, with current caps on malpractice awards, it’s cheaper for the HMO to litigate a suicide than to prevent one. Consequently, significant flaws in their treatment programs go unaddressed year after year. As a psychotherapist who until recently worked within the Kaiser system, I believe an increase in the cap on malpractice lawsuits, as proposed in Proposition 46, could help steer the system toward competence.

From September 2006 until I was escorted from my office for whistle blowing this past May, I evaluated and treated Kaiser Permanente members with mental illness at the Santa Rosa Medical Center. During my last three months at Kaiser, I blogged about the myriad and widespread deficiencies in the managed mental health care system on my website 90daystochange.com.

First off, I argued, therapist staffing levels are unconscionable. Across California, the wait between one-on-one visits with a psychotherapist — the core of treatment — averages four weeks. Due to the absence of individual attention, the drop out rate for people with major depression and panic disorder, two of the most common conditions in psychiatry, is 75% or more within the first three months of treatment.

At the same time, quality assurance programs are grossly insufficient and out of compliance with state and federal laws. Quality assurance programs are a fundamental check on HMOs. Without them, specific provider problems (like incompetence) or system problems (like understaffing) continue unabated. Last year the panel of four therapists in Santa Rosa who conducted internal reviews of suicides and other negative outcomes was reduced to a single physician charged with reviewing all cases. Since physicians own the medical group, delegating quality assurance to an MD alone creates a dangerous conflict of interest.

Considering the breadth of these staffing and quality assurance problems, penalties from state and federal regulatory agencies have been slow and slim. After three years of campaigning, the union representing Kaiser therapists was able to leverage the California Department of Managed Health Care to fine Kaiser’s physician’s group TPMG $4 million. Four million dollars would pay for twenty-five new therapists for a year. But Kaiser California needs at least a thousand more therapists to make even a dent in their service gaps. In order for executives at the top to re-examine their bottom line, a fine would need to be more on the order of $100 million a year until the situation is resolved.

Since the feds and the state are unwilling to levy effective fines, individual lawsuits need to become a more prominent force for change. Raising the cap on penalties would bring increased numbers of lawyers and families to the arbitration table. As more compelling evidence about gaps in Kaiser’s treatment programs continues to emerge, family members will win these cases more consistently. The cost of litigation will go up.

And, eventually, Kaiser’s cost-benefit analysis will guide their executives away from litigation and towards care.

(72 days to go.)

Let’s Talk Medicare Fraud

According to the Kaiser Family Foundation, in 2013 Kaiser had 8% of the Medicare Advantage market. That means that last year 1.1 million elderly and disabled Americans received their health care, including mental health care, through the Kaiser Advantage program. Medicare recipients get their care side by side with other Kaiser members whose premiums are paid by employers or privately. All of the deficits in care I observed while working as a therapist at Kaiser from September 2006 through May 2014, documented in the first “90 Days” of this blog, apply to Medicare patients too.

When a Medicare beneficiary chooses Kaiser as its provider, Medicare pays Kaiser a monthly premium on behalf of the beneficiary in expectation that the consumer will get a basic level of care. Medicare also pays additional fees as incentives for Kaiser to treat “sicker” patients. I read about the abuse of this additional fee system in an article by Fred Schulte of the Center for Public Integrity in Washington DC. He reports that Medicare Advantage patients get higher “risk scores” if they have diagnoses that lead to more expensive care, like hypertension. Like Major Depression, Recurrent. And higher risk scores translate to higher reimbursement rates that Medicare pays Kaiser, presumably for additional care.

According to federal parity laws, Kaiser is compelled to provide basic mental health care at a level comparable to physical health care, to all its clients, including Medicare clients. With the risk score system, Kaiser accepts additional funds to provide additional care for people with mental health diagnoses like Major Depression. But Medicare beneficiaries aren’t getting additional care. They’re not even getting basic care.

I made the argument in the first “90 Days” that Kaiser does not provide the most basic services expected by consumers and therapists, let alone parity services. The most standard treatment protocol in the Kaiser mental health model of care is a single hour of initial assessment, followed by referral to a skills group, with a follow-up one-on-one therapy appointment booked typically a month in the future. The drop out rate from the skills groups for major depression and panic disorder (two of the most utilized treatment tracks) is 75% or higher. Without the support of an individual therapist who meets weekly for at least the first month of treatment, most (75% or more of) new clients get discouraged and drop out.

Kaiser might claim that an initial drop out rate of 75% is par for the course for mental health treatment, and that this high rate doesn’t prove they need to hire more therapists. That might be a credible defense if they had a meaningful quality assurance program, as required by law, to back up the claim.

Last year in Santa Rosa, a fairly functional quality assurance panel of four therapists was replaced by a single MD reviewing all cases of suicide, near suicide, and other poor outcomes. I say it was fairly functional because it was always unclear how cases came to the panel for review. The two cases of suicide in which I had been one of the providers involved did not come up for review – at least not by the panel. In an effective quality assurance system, every single suicide would be reviewed by a multidisciplinary panel to assess for provider and system flaws. To prevent future bad outcomes.

The panel in Santa Rosa was de-authorized in an attempt to staunch the flow of damaging information to therapist whistle blowers. Kaiser does not want therapists to have precise information about the actual numbers of suicides in the department, nor to be party to the evidence that might demonstrate that suicides can be  linked to the current model of care — brief assessment and referral to groups.

These two deficits — a defective treatment model and the absence of meaningful quality assurance checks on the model — taken in tandem, result in a gross misrepresentation by Kaiser of the care paid for by the Medicare program. In 2013, as many as 1.1 million Americans were affected by this misrepresentation. In other words, Kaiser has been committing fraud, year after year, on an enormous scale.

To restate: our tax dollars are being given to Kaiser to take care of the health, including the mental health, of Medicare members. Extra money is being paid to Kaiser to care for people with certain mental illnesses. The money is being spent on programs that licensed providers within the system are calling insufficient at best and malpractice at worst. And the mechanism of quality assurance, the check on an HMO’s natural inclination to cut costs, exists in form only.

If that’s not fraud, what is?

(76 days to go.)