Defense Fund Aids in Medicare Payback Case

A Medicare agent wants a social worker to repay $90,000 she received for services in nursing homes.

NASW's Legal Defense Service in October made a grant of $4,500 to Jacksonville, Fla., social worker Cynthia Baxter, who has been ordered by Florida's Medicare agent to repay over $90,000 she had been paid for clinical services delivered to nursing home residents.

While working as an independent contractor for a Miami firm named NeuroCare for 14 months, Baxter delivered and documented delivery of clinical services to nursing home residents under Medicare Part B. The Medicare agent for the state, Blue Cross/Blue Shield of Florida, initially paid for the services. Then the Blues did another review of payments, denied all claims by Baxter and demanded that she repay what she had been reimbursed for rendering mental health services in the nursing homes.

Shocked that claims were denied after nursing homes around Jacksonville had requested her services and after she had documented service delivery at every step, Baxter borrowed money, hired a lawyer and appealed the rejection of her claims.

On appeal, the Blue Cross/Blue Shield agent agreed to honor about 2 percent of her claims but again rejected the rest. Baxter has appealed that decision, this time to the Medicare administrative judge level in Virginia, where a hearing was to be scheduled.

"The significance of the legal issues raised in your appeal regarding the proper application of Medicare provisions and the medical necessity definition to clinical social work services provided in the nursing home setting were viewed as important to the practice of social work in the State of Florida and nationally," said NASW General Counsel Carolyn Polowy in a letter to Baxter telling her the Legal Defense Service was supporting her case with a grant.

In an interview, Baxter said the claims were denied because the Medicare agent said the services she provided in the nursing homes weren't medically necessary. She said she provided clinical services to nursing home residents after they developed medical conditions common in nursing homes, such as urinary tract infections, diabetes, falls, kidney failure, pneumonia, seizures, strokes, congestive heart failure and other conditions that altered their mental status.

At other times, she said, she provided services to disabled residents who were left to fend for themselves, people with no family or support systems, those suffering from the loss of independence, social status and sense of identity, those socially isolated and those who couldn't identify with the activities that go on in nursing homes. Other times, she said, she provided clinical services to those left unkempt for hours or not fed.

"If you go in there and see, there is no way to say it's not medically necessary," she said. Under the narrowest of definitions, medical necessity for mental health services can be defined by whether or not a resident's physical well-being and health are adversely affected by not receiving mental health services, said Baxter. "It is clear that by denying the claims for mental health services, HCFA reviewers do not understand the relationship of mind and body."

"HCFA [Health Care Financing Administration] is clearly denying mental health services to nursing home residents mandated by the Omnibus Budget Reconciliation Act of 1987," she said.

That budget law contains the Nursing Home Reform Act, which mandates provision of a wide variety of professional mental health services to nursing home residents. Since the act's passage, HCFA has allowed social service "designees," often with no training, to be in charge of social services.

Social services directors around Jacksonville are sometimes licensed practical nurses or people with bachelor's degrees in other fields and no social services training, said Baxter. "There are few BSWs and fewer MSWs."

Without paying for services from contractors, nursing homes residents will receive no professional mental health services, she said.

Baxter said she had heard of other social workers and psychologists in Florida who also had been asked to repay after providing services and being reimbursed.

"I did long, hard work, and I'm going to appeal all the way," said Baxter, who paid 30 percent of what she received to NeuroCare, the company with whom she contracted, to make sure she stayed within Medicare guidelines. Baxter, who received her MSW from Temple University in 1987, is now marketing/admissions director for a Florida nursing home.

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