This transcript is auto generated
00;00;00;00 - 00;00;25;10
Jonathan Porter
Welcome to another episode of Husch Blackwell's False Claims Act Insights podcast. I'm your host, Jonathan Porter. Healthcare is huge in the False Claims Act. 83% of settlements and judgments last year in terms of dollars came in the healthcare space. And healthcare is changing rapidly. AI is changing how healthcare works. There's all this other tech that is changing how healthcare works.
00;00;25;12 - 00;00;49;07
Jonathan Porter
And really the enforcement of the healthcare industry is going to change just as quickly. We're seeing DOJ get smart with new, new ways to use their data. They're using new tech to spot outliers. And so while the world of healthcare is changing, the role of healthcare enforcement also changing. And so we're going to talk about today on the podcast, we're talking about the changing world of healthcare enforcement because it is rapidly changing.
00;00;49;07 - 00;01;10;06
Jonathan Porter
And it's important that we all stay ahead of the curve when it comes to health care enforcement. Joining me to talk about this changing enforcement landscape in health care is my friend Shawn Weiss. Shawn advises health care providers in a range of enforcement and compliance issues. Sean is with DoctorsManagement LLC. He also hosts the hit podcast The Compliance Guy.
00;01;10;08 - 00;01;32;09
Jonathan Porter
His standard for who to have on the podcast is pretty low because he let me on the podcast not long ago, but seriously. So Sean is also a very widely respected person in the healthcare compliance world. He's on HHS as National Committee on Vital and Health Statistics, and just got named to the new White House Task Force on Health Care Fraud and teaches at George Mason University's Antonin Scalia Law School.
00;01;32;14 - 00;01;48;27
Jonathan Porter
Sean, there's a bunch that I could say about you, but I think the most important thing for people to know about you, Sean, is that you, like me, are a Georgian. And that's what I like most about you, Sean. But seriously, thanks for coming on the podcast and talking to our guests about the changing world of healthcare enforcement.
00;01;49;00 - 00;02;14;21
Sean Weiss
Yeah. Thanks, Jonathan. I really do appreciate it. And it's always such a treat for me to be able to come on to somebody else's podcast, because I don't really have to think about the transition or the questions, or is it going in the right direction. I just kind of get to hang out and spend time with a friend and talk about the stuff that I geek out over, which is data analytics, predictive analytics, modeling False Claims Act regulatory compliance.
00;02;14;21 - 00;02;32;05
Sean Weiss
So this is really a treat for me and both of us being Georgia guys gives us a great tie in together. But I think what ties us and binds us together is our passion for the healthcare industry, specifically the world of regulatory compliance and health law. And just getting to hang out with you is a privilege and a treat, my friend.
00;02;32;05 - 00;02;35;23
Sean Weiss
So thank you for having me on this great podcast and thanks to Husch Blackwell.
00;02;36;00 - 00;02;57;17
Jonathan Porter
Thanks, Sean. Yeah, let's get the geek out session started. So you've warned in your talks and on your podcast about cloning and clinical plagiarism, that whole world is changing. Now that AI documentation and ambient scribes, they seem to be everywhere. So with that landscape, what are the biggest ways that notes become audit bait or worse, like FCA problems?
00;02;57;17 - 00;03;03;20
Jonathan Porter
What do providers need to be doing to maintain note integrity? Because I think that's a lot more important than a lot of people realize.
00;03;03;22 - 00;03;35;26
Sean Weiss
Yeah. And it really is the critical issue. And for me, cloning has been a systemic issue for decades since we moved into the electronic world of medical record keeping back, what, around 2015, as part of the Obama administration's push to automate. And, you know, it's really interesting when President Obama was asked, after he had left office, what some of his biggest regrets were on policy and things like that.
00;03;35;26 - 00;03;58;04
Sean Weiss
It was really shocking when I read it. And one of the things that he said, his biggest regret was forcing electronic medical records on the healthcare industry, not recognizing just how far behind the medical practices lagged in technology at the time, and the chaos that it really created in there, having to create these incentives and all these different things.
00;03;58;04 - 00;04;41;06
Sean Weiss
But what really spawned from that to your point is a flexibility for providers to be able to use cut and paste features and to really take shortcuts that I don't think were intentional from the majority of the standpoint, if you will. I think it just became a situation where we were in a state for so long of stagnant to declining reimbursement that providers, in order to maintain the same level of financial stability for their organization and to be able to get the same amount of take home in compensation for the work that they were doing, it became a numbers game, and the only way you could do a numbers game, especially if you're not tech
00;04;41;06 - 00;05;08;27
Sean Weiss
savvy and you're not a good typist or you're a one finger typist, was moving into an electronic medical record that allowed you the flexibility of cutting and pasting from one encounter to another. And I think what really happened was providers weren't paying attention to the fact that each and every single encounter needed to be able to stand on its own, to be able to substantiate the level of service that was being billed, or the specific CPT codes or the diagnosis codes.
00;05;08;27 - 00;05;30;27
Sean Weiss
And as a result, auditors started getting smart and looking at it and going, well, if I pull 20 dates of service and I do them in consecutive order right, or chronological order, as opposed to like one here, one here, one here, one here, I'm going to see that there's a pattern of behavior from encounter to encounter, where everything is identical or nothing is changed.
00;05;30;29 - 00;05;50;08
Sean Weiss
And that's really where the systemic issue of cloning popped up. And that's where folks like yourself. As a prosecutor, we're making a lot of strong cases, and you were getting a lot of settlement agreements or getting people to move into these corporate integrity agreements and change their behaviors. So, yeah, a huge problem I've been talking about this for decades.
00;05;50;11 - 00;06;18;27
Sean Weiss
We had programs that came out. There was a company at one point that was called Clone Sleuth, and you actually have that now as a built in feature. It's like a hover over feature. If you use Epic Medical Records and some of the others where it will literally start showing you patterns of documentation, and it makes it very easy now for providers to be able to understand how vulnerable their medical records are and how susceptible they are to potential overpayment claims being made.
00;06;18;29 - 00;06;33;29
Jonathan Porter
Yeah, Sean, you're right. When I was at DOJ, that's absolutely something that I dug into a good bit because the theory is it's not just about what you do. You got to prove what you've done. My kids are young, and they're learning to do math. All the teachers tell them, you got to show your work or you don't get the credit.
00;06;33;29 - 00;06;57;24
Jonathan Porter
It's the same thing in healthcare. If you're a doctor, show your work or you don't get the credit for the encounter. And so that's what's happening. What people don't understand though, and there's a bunch of studies on this is how much, at least back in the old days, how much documenting took out of a doctor's day ten years ago, actually, a little more than ten years ago, my wife and I, we spent a bunch of time in the hospital before my oldest son was born.
00;06;57;26 - 00;07;12;07
Jonathan Porter
So we got to know our doctor really well, and he had to make rounds first thing in the morning before I'd go off to work. And every morning he would come spend time with us, check in on my wife's pregnancy and my son to see like how things were going. And so we'd meet with him and then he'd leave.
00;07;12;10 - 00;07;27;04
Jonathan Porter
I'd spent a certain amount of time with my wife, and then I'd go off to work, and every single time I'd see him out in the hallway, typing up notes and ordering tests and everything. And as much time as he spent with us, he was spending as much time documenting what he told us, what he's thinking, what he's going to do next.
00;07;27;06 - 00;07;44;29
Jonathan Porter
That's the way medicine works. If you can fix the burden of these notes, you're going to make doctors more productive, and you're going to help them figure out on the front end what's going on with this patients, because they got a lot of patients. You want them to know what's going on. To me, anything that tech can do to make doctor's jobs easier, I think is a good thing.
00;07;45;03 - 00;07;54;24
Jonathan Porter
But you got to make sure that you're doing it the right way. Sean, you were telling me the other day that there's some state level enforcement now where some companies are just getting it really, really wrong. Tell us a little bit about that.
00;07;55;00 - 00;08;23;03
Sean Weiss
Yeah. So you're 100% correct, Jonathan, in that the documentation providers were spending as much, if not more time ensuring that they were dotting the I's, crossing the T's and producing notes that were quote unquote, audit proof, if that really ever was a real thing. Streamlining the process, finding efficiencies. You know, that was part of the administration's plan, which was the administrative simplification, right?
00;08;23;09 - 00;08;53;24
Sean Weiss
Patients before paperwork, if only that were true in the real world. I mean, theoretically, it sounded fantastic. There are organizations, and it started in September of 2024, was the very first one. An attorney general that I actually had the privilege of working with was able to bring a I organization on the scene to a settlement agreement, and it was the very first one of its kind with respect to AI.
00;08;53;26 - 00;09;46;01
Sean Weiss
And it was under the and I want to make sure I say it correctly, it was under the State Deceptive Practice Marketing Act, if you will. I may have jumbled the words a little bit, but I apologize. But that's basically what it is for deceptive marketing practices. And this technology organization was making these incredible claims that there ambient learning system or their dictation system was able to capture every aspect of what was transpiring during encounter with a provider, meaning a physician or an app and the beneficiary, and take what transpired and turn those into full progress notes that had purpose, that were meaningful, that had plan of cares that were in line with generally accepted
00;09;46;01 - 00;10;30;24
Sean Weiss
standards of medical practice. And the truth is, the system wasn't doing that in multiple health systems within this particular state. Felt that they were deceived by this organization. They filed a whistleblower with the attorney general, and the attorney general made no bones about it. They went after this organization and they brought them to their knees, basically, and force them into a very heavy settlement agreement, at least from my perspective, with a lot of the EMR companies that were reaching out to me that were getting into the eye in the beginning with these, EMR started asking a lot of questions and trying to pick mine and other SMEs in the industry, our brain, to be able
00;10;30;24 - 00;10;53;22
Sean Weiss
to say, what should we be thinking about? How should we be structuring these? And it always came down to the same thing. You had to find a way to make physicians and apps understand that what you are creating is an efficiency tool. It requires human intervention from the front end, middle, the back end to ensure the integrity of what's being produced.
00;10;53;29 - 00;11;18;10
Sean Weiss
One and to minimize bias, to minimize hallucinations and things of that nature. And it was really interesting because in the beginning, these lines were spitting out like, think about, you know, when you were a prosecutor, even now, as a criminal defense attorney, you probably look at some of the notes that come from an EMR and you wonder how like A99213 is ten pages long.
00;11;18;13 - 00;11;38;12
Sean Weiss
Most of it's crap, right? I don't mean to be terse or anything, but I mean, it's crap. It's problem lists that haven't been cleaned up where a patient has otitis media for the last 25 years, and these other acute illnesses that would have been cleared by antibiotic or by some other type of modality or treatment, and they still live in there.
00;11;38;12 - 00;12;02;09
Sean Weiss
And they think by leaving that stuff in there, it shows a higher level of acuity of the visiting it. And it really doesn't. It's garbage. But now what we're seeing is with some of these AI programs, and I want to be very careful because I don't want to upset the apple cart because of where we are right now in the space, but we've gone from like seven and eight pages of garbage to now like 15 pages of crap.
00;12;02;11 - 00;12;28;28
Sean Weiss
And, you know, it's I generated. I mean, the words are all hyphenated. The doctors don't speak that way. If you click on the links that are in there for references or citations, the citations aren't accurate. If you look at some of the demographic information that's in there, you'll find the anomalies, the biases and things of that nature. So I think people need to stop calling it artificial intelligence and seriously use a different term.
00;12;29;00 - 00;12;55;24
Sean Weiss
I prefer the term augmented intelligence because what we're really doing with these, Jonathan, is we're augmenting the providers notes. We're finding a way to take the documentation that's been created by these providers and put it into a meaningful progress note that is augmented by this tokenization, which is really what happens with AI, right? It's a tokenization. They're just words.
00;12;55;27 - 00;13;18;18
Sean Weiss
And once we understand that these things don't have a consciousness, I don't care what anybody says. Sam or any of these other folks, these machines don't have a consciousness. They're not learning, they're tokenizing, and they're learning patterns. They're learning patterns of behavior. And you can train it to function in a certain way, but it's all based on algorithms, and that's really what it is.
00;13;18;18 - 00;13;25;04
Sean Weiss
And people need to stop relying on these AI programs as if they are gospel.
00;13;25;06 - 00;13;39;19
Jonathan Porter
Yeah. And you touched on something, Sean, that really and this should be something that you go back and tell the White House and Kim Brandt and everyone else is it doesn't have to be this way. You don't need a level three, E&M encounter to have just 10 or 15 pages of junk. We both know how it gets there.
00;13;39;19 - 00;14;00;13
Jonathan Porter
It's because the platforms have a bunch of dropdown screens, but we're a long way away from when doctors used to go outside of the office and start typing on the keyboard or writing stuff down in an actual node. All of this could be improved. It'd be great if this could be improved, because it's sort of silly that we're going to base compensation based on how long you could make your node.
00;14;00;13 - 00;14;18;25
Jonathan Porter
That's what a lot of people seem to have default. It's just really not the way any of this should work. But, you know, I think Sean AI is here. It's not going away. But so is telehealth. So this is something that you and I spend a chunk of our time over the last several years on, and we could go down the rabbit hole that some call, tell a fraud, and we can go there if you like.
00;14;18;25 - 00;14;35;19
Jonathan Porter
But I'm also interested in hearing your opinions on how legitimate providers can safely integrate telehealth into their practices in ways that stay on the right side of the compliance guardrail. So there are some best practices for providers to help patients without stepping on any of these compliance landmines.
00;14;35;21 - 00;15;09;25
Sean Weiss
Yeah, no, I think that's a great transition. You know, look, prior to Covid, right, maybe 10% of the entire patient population ever experienced a telehealth visit. Covid hit and it went to 95% of everything. And I think the most important thing for me, the biggest compliance landmine that exists in telehealth right now, are providers not understanding that these services aren't meant for you to use just because you didn't want to get out of bed that day and have to drive to the office and see patients in person.
00;15;09;27 - 00;15;44;00
Sean Weiss
These visits are really for individuals who have mobility issues, who are located beyond a reasonable drive to be able to get to a physician and a medical group or a hospital or something of that nature. It's not meant as a shortcut to cut out that patient, you know, face to face visit. I think, obviously making certain that you are aware of the modifiers that are applicable to justify the telehealth or to make notice the telehealth service, the originating site of service being documented is critical.
00;15;44;02 - 00;16;20;23
Sean Weiss
Making certain that you have the patient's consent to conduct a telehealth visit with them, and that is clearly documented in the medical record, sort of as a disclaimer and again, making certain that you are rendering telehealth services for those type of appointments that don't really need a hands on physical examination. I mean, we've been doing this long enough, you and I, that we can easily look at a note and say, all right, this is a viable note from a physician because they were able to say that the head is normal and noncephalic.
00;16;21;00 - 00;16;48;13
Sean Weiss
The eyes are normal and reactive, the tongue is pink and not swollen, you know, but they can't assess patients from a flexion extension standpoint from a rotation and abduction adduction standpoint. They can kind of say, well, yeah, you know, I can see Sean rotated his arm 45 degrees or they just have to be careful. And they have to understand again that telehealth is a supplemental tool.
00;16;48;13 - 00;16;59;18
Sean Weiss
It's there to be used, but it's to be used in a responsible way, for patients who truly need that type of service to receive the care that they need.
00;16;59;21 - 00;17;29;05
Jonathan Porter
Yeah, I think telehealth is potentially a brilliant thing for medicine. One story that I used to tell, a sentencings of 12 fraud cases when I was a prosecutor was how one of my wife's family members, she had a medical emergency, went to the hospital and I happened to be working next to the hospital. So I got there very quickly, and they were very quickly able to get my wife's family member on a video call with a specialist from the Medical College of Georgia, like the leading person in the neuro space, in order to do some quick diagnosis.
00;17;29;05 - 00;17;47;03
Jonathan Porter
They didn't have that type of specialist on site, but very quickly they were able to get a talk. That's a fantastic use of tele. You're making the patient's life better. I think in general, Sean, the way that people should think about telehealth is, is this making the patient's life better or are you just not wanting to have office hours?
00;17;47;05 - 00;18;14;06
Sean Weiss
Yes. It's not about convenience, right? It's about providing a meaningful service for a patient that has difficulty ambulate eating, has transportation issues because they live in a rural community and they're of advanced age. They don't drive. They don't have somebody who can get them to these visits all the time. But, you know, hearing you bring up that story about getting to specialist, there's another side to that as well.
00;18;14;08 - 00;18;38;29
Sean Weiss
And one of my very best friends, a close friend of his, unfortunately passed away last year and he was admitted into this one particular hospital that is not a high acuity hospital. For whatever reason, they didn't put in transfer orders to get the guy over to Orlando Regional Medical Center, where he would have been better suited because he had cancer during the four days that the patient was there.
00;18;38;29 - 00;19;03;08
Sean Weiss
And it was like a holiday weekend to never once did a physician come into the room face to face to see this patient. They literally wheeled a TV cart into the room that had a camera and a guy in a box who basically asked a few questions. I mean, this is a patient that was in respiratory distress. He had to wind up being intubated.
00;19;03;13 - 00;19;24;11
Sean Weiss
And even when he was intubated, this critical care physician never came to the hospital to see this guy in. On day four of this patient's admission, the patient expired. And do you know that the physician pronounced him on the video? I mean, so, you know, look, I know that people are going to listen to this and go, oh, that's an extreme issue.
00;19;24;11 - 00;19;50;15
Sean Weiss
Or, oh, he's embellishing. I promise you, I'm not embellishing that story in any way, shape or form. That is 100% honest to God. True story. Obviously, I cut it down for the sake of, the podcast, but I mean, that's precisely what happened. So while there's incredible aspects to using telehealth, there are also aspects that are incredibly dangerous, especially not only from a false claims standpoint, but from a medical malpractice standpoint as well.
00;19;50;15 - 00;19;53;00
Sean Weiss
And that's a whole different boat of issues.
00;19;53;04 - 00;20;09;15
Jonathan Porter
Yeah, but at the end of the day, you've got to make sure that your use of it is in the best interest of the patient to be. That should be the guiding principle. If we use telehealth in this way, are we going to make our patients lives better or worse? In my wife's family member's case, it was better in your friend's situation, it was worse.
00;20;09;20 - 00;20;25;06
Jonathan Porter
But that should be the guiding principle. Regardless of what all the originating site rules and everything is. By the way, you should abide by this. But at the end of the day, if you're making your patients lives better, that's what you should focus on. Another thing, Sean, that I think is really important is medical necessity. When we talk about why is health care a thing?
00;20;25;06 - 00;20;42;29
Jonathan Porter
Why do we pay for healthcare? It comes back to medical professionals providing medically necessary services. And so I always take things back to is this something that people should be paying for? Is it something that is medically necessary? And like we were talking about at the beginning, Sean, you can't just assume that a doctor's intent is good.
00;20;42;29 - 00;20;55;23
Jonathan Porter
You got to document what medical necessity is. And so I'm curious, how should providers document medical necessity in a way that holds up, especially when coverage rules and payer expectations, they aren't always consistent. So what are some best practices there.
00;20;55;29 - 00;21;25;29
Sean Weiss
Yeah. So you know so medical necessity is what drives every single encounter right. If you look at chapter three of the Medicare Program Integrity Manual, 3.6.2., whatever it is, or 30.6.2, you know, it talks about medical necessity, and medical necessity is the overarching criteria for how a level of service should be billed. For me, I always tell physicians that medical necessity drives your rationale for why you do what you do.
00;21;25;29 - 00;21;51;27
Sean Weiss
It's your medical decision making that actually drives the intensity of the visit. And the one thing, because I'm not a clinician that I try to educate providers on, is to say, when you read your plan of care, when you read your note, can you answer a question which is very simple. Are the services that you provided done so in accordance with generally accepted standards of medical practice?
00;21;52;00 - 00;22;24;27
Sean Weiss
Are they based on peer reviewed literature? Is this commonplace in the industry? Is there prevailing clinical guidelines that drive you on how you performed your diagnostic evaluation of the patient, what you ordered, all those different things. But, you know, the really interesting thing, Jonathan, with medical necessity and tying it back into what we were talking about originally with I, you know, the Shapiro Administration here in Pennsylvania, where I'm actually working this week, I'm actually in new Jersey this week.
00;22;24;27 - 00;23;01;08
Sean Weiss
But, you know, I flew into Philadelphia. The Shapiro Administration back on May 5th actually filed claims against an AI company claiming that they are practicing medicine without a license, and they hit them for medical necessity. The administration just in a nutshell, they're basically saying you are allowing a machine to tokenize and to look at patterns, to make a determination on what justifies medical necessity, as opposed to relying on the clinical judgment of a trained professional.
00;23;01;10 - 00;23;30;18
Sean Weiss
But the truth is somehow we've gotten away from worrying about what's best for the patient, and we've gotten into a point of worrying about what's best for the bottom line. And that's not what medicine is. We rank 11th in first world countries in clinical care, and we rank number one in cost of provision of medical services because of how heavy we are burdened from an administrative standpoint.
00;23;30;20 - 00;23;48;01
Jonathan Porter
Yeah, the burden is real. And that's an area where I really hope that we could all get on the same page in terms of what's the right way that medicine should be. And I was not joking when I said earlier, you should bring that up to the people when you're on this new fraud task force. There's so much you can call a defensive medicine, you can call whatever you want to.
00;23;48;01 - 00;24;05;08
Jonathan Porter
But people who think more about how is this going to stand up in an audit? Or if I'm scrutinized by DOJ or someone else, there's a decent amount. And speaking of DOJ, and we reached the point of the podcast where we really are going to geek out. So prepare yourselves, listeners at DOJ, we had all of this data, all of this outlier data.
00;24;05;08 - 00;24;24;07
Jonathan Porter
We were trying to find ways to use our data. Even better, try to figure out how we can spot potential new health care targets. And one of the outlier reports that I remember looking at a lot was the list of providers who used modifier 25 more than others, and I know you've spoken a lot about modifier 25 as well.
00;24;24;10 - 00;24;38;00
Jonathan Porter
What are auditors and enforcers really looking for right now, and what makes modifier 25 defensible for providers are some best practices for making sure that modifier 25 usage is in creating risk for records you can't support.
00;24;38;07 - 00;25;15;01
Sean Weiss
Yeah. So such great question. Right. So the reason why the modifier 25 is such a treasured modifier by providers and such a loathed modifier by the payers is because it changes the balance between payments. It is the modifier besides modifier 59 that singlehandedly ensures providers get paid extra money. So the most important thing to keep in mind is that the modifier 25 signifies a significantly separately identifiable, not a significant and separately identifiable.
00;25;15;04 - 00;25;51;20
Sean Weiss
It's a significantly separately identifiable evaluation and management service or procedure above and beyond the pre-service workup of that procedure. I was trying to go from memory for the definition. What that means is, and the way that it's defensible is you don't always have to have different diagnoses, but you should. It's helpful, but you need to be able to demonstrate that the pre-service workup that you would have done for this minor procedure is above and beyond what is typically done in that scenario, and it needs to be unrelated to the reason why the patient is having the procedure.
00;25;51;22 - 00;26;22;08
Sean Weiss
So for me, I have a lot of auditors or coders that will say to me the only time I'll allow a modifier 25 on an E&M services, if it's like a level four or above 4 or 5, and that's not really what it's meant for. I mean, you can have a level two service, you can have a level three service irrespective of it's not based on the intensity of the code, it's based on the intensity of the medical decision making and the significance between that separately identifiable problem from what they're actually having.
00;26;22;11 - 00;26;49;20
Sean Weiss
Again, what makes it defensible are physicians and APPs who are willing to go the extra mile to ensure that they have strong documentation in the medical record period. You have to provide a clear, unadulterated view of what transpired during the encounter with you and that beneficiary. And I always tell my providers, the more information that you can give me in your own terms, the better it is because you know what happens.
00;26;49;20 - 00;27;26;22
Sean Weiss
Jonathan, on an appeal, the provider calls me and says, what do I do here? Well, the first and most simple answer that I give them is we have to do a clinical summary, and a clinical summary is we're literally taking everything that you've put into these 15 pages of documentation, and we're going to cut it down to a page page and a half clinical summary that is very tight, very clear and concise for why the patient was seen, what transpired during that encounter, and why you deploying clinical judgment as the treating physician, believe this is the best course of care for the patient.
00;27;26;25 - 00;27;57;15
Sean Weiss
And that's what we always do. And I tell providers, if you just think about that before you dictate your note or before you allow electronically sign a note, go back and ask yourself just some very basic, simple questions. One. Have I given a clear, concise reason for the patient's encounter today? Have I demonstrated my work right? My granddaughter, who's now 15, made the mistake about six months ago or a year ago, asking me to help her with her algebra homework.
00;27;57;17 - 00;28;12;09
Sean Weiss
And I'm that guy that can kind of look at something and I'm like, here's your answer. And I don't know why. My mind just kind of works that way. And I gave her the answers and she's like, no, Papa, you don't understand. I had to be able to show my work. And I'm like, oh, that's ridiculous. Meanwhile, she got in big trouble and she's like, I'm never asking you for help again.
00;28;12;12 - 00;28;33;12
Sean Weiss
But it relates to this perfectly because I say to the physicians, show me work. It's like what you said earlier, show me your work. You don't have to count the beans and the bullets in the elements like you did in the history exam anymore, but you got to give me a medical appropriate history and examination and then give me a powerful conclusion.
00;28;33;16 - 00;29;02;17
Sean Weiss
Your plan of care. Help me understand and remember what you were trained when you went through medical school, or you went through APP school and you were learning to soap note right. Give me your objective. Give me your plan and give me your assessment. And make sure that that plan and assessment are absolutely tight. They're extensive, and they are definitive in your clinical judgment for why you've decided to treat the patient in the manner that you want to treat them.
00;29;02;20 - 00;29;23;26
Jonathan Porter
Yeah, Sean. And where I think people get in trouble, they're first of all, I don't think DOJ is ever going to go after a one off mistake where you're doing that. Where I was focusing when I was a DOJ was finding providers who routinely did the same thing over and over again. You've got this particular procedure with a global period, and then you're adding an E&M code with the 25 modifier on top of that.
00;29;23;29 - 00;29;37;05
Jonathan Porter
When you do it, every single time when you're doing it, you know, 90% of the time you're going to have a hard time getting past some serious scrutiny there. So how do you fix that? Like if you're a provider, how do you realize, okay, I'm doing something that's really wrong on a big global level.
00;29;37;11 - 00;30;04;07
Sean Weiss
Yeah. No. And that makes perfect sense, right? Listen, the government has gotten incredibly smart just listening to Kim speak at HCA just a few weeks ago, she was talking about there are now more than 750 partner companies that they are working with on data analytics, AI, all this stuff. So they are getting incredibly intelligent. They are getting much faster at going through this stuff from a program
00;30;04;07 - 00;30;33;05
Sean Weiss
integrity standpoint. So, you know, your question is what do providers do so they don't create this global mess for themselves. And it starts with getting education, understanding that there's no possible way 100%, or even 95% of all of your patient population is going to require significantly separately identifiable E&M service. It's just not. And you're creating a very easy, detectable pattern of behavior, right?
00;30;33;07 - 00;30;55;25
Sean Weiss
Your aberrant in your coding pattern. If you're selecting all level fours or you have an outlier status because 95% of all of your E&Ms have a 25 modifier attached, I mean, use the modifier responsibly. Use it when it's appropriate. I understand I have a lot of providers that are like, why do I have to play by the rules when nobody else does?
00;30;55;25 - 00;31;20;00
Sean Weiss
Well, you have to play by the rules because you've engaged in a participation agreement with the federal payer programs, and we're commercial insurance companies. They have much deeper pockets. Then you have to be able to litigate these things. And oh, by the way, the government has what's called prosecutors at the Department of Justice who are very good at getting what they want as a resolution.
00;31;20;00 - 00;31;40;14
Sean Weiss
So, you know, I don't know if I'm answering your question in the best possible way. I think it's to not create detectable patterns and to be honest with what it is that you're doing each and every single day. I mean, trying to cut corners, trying to make an extra buck, trying to do whatever it is. It's just not worth it.
00;31;40;14 - 00;32;03;13
Sean Weiss
I mean, if you take a look at the civil monetary penalties under the False Claims Act, if you look at the potential for, you know, exclusion from the federal payer program or, you know, jail terms or things that go along with violation of the health care fraud statute or the Stark Law, anti kickback statutes or whatever we're talking about.
00;32;03;15 - 00;32;22;19
Sean Weiss
For me, I guess I'm just that conservative person with my temperament and my behavior where I'm like, I'm not a big risk taker. So for me, I'm happy making an honest living. I'm happy paying my bills. I'm happy having some extra money to be able to take a trip and go out and have a steak dinner once a month or something like that.
00;32;22;24 - 00;32;48;25
Sean Weiss
It's those where I think they're driven by greed, and they're driven by anger against the insurance companies for how they feel they're being mistreated, that they get sloppy and they get careless, and they make these really pinhead decisions to up code their levels of service. Add modifiers that are not applicable at all phases of what they're doing, and they may get away with it for a little while.
00;32;48;25 - 00;33;14;02
Sean Weiss
But guess what? The intelligence that exists right now in program integrity, there's no getting away with anything. These insurance companies know your numbers and they know your numbers better than you do. I promise you they do. And the enforcement. You can talk about this from your former employer with the DOJ. We just got the first enforcement, document released by DOJ.
00;33;14;03 - 00;33;36;14
Sean Weiss
What, just a couple of months ago for how they're moving forward on enforcing this stuff. It's kind of changed the prosecutor's playbook if you will, from the evaluation of corporate compliance programs, right. The EECP. So it's really wild to see the direction that DOJ is going in. We both shared a mutual friend with Kenneth Polite when he was the assistant attorney general.
00;33;36;14 - 00;33;59;28
Sean Weiss
I mean, he was an incredibly aggressive assistant attorney general. I will go out on a limb to say right now, the acting AG and the acting assistant AG right now, this administration is so far beyond the level of aggressiveness that I've ever seen in 30 years of being in healthcare. And I take my hat off to them.
00;34;00;02 - 00;34;27;08
Sean Weiss
They're ferreting out the fraud, waste and abuse. Oz, RFK, Kim Brandt. I think they had done an incredible job. And I don't say that because I have a personal relationship with them. I say that because I'm an outsider looking in as a special government employee, and I'm looking at every single day what they're doing and how they have really made a conscious effort to transform the business of medicine and health care.
00;34;27;08 - 00;34;52;08
Sean Weiss
And I see it getting more aggressive. Kim Brandt made the comment the other day where they believe there's $100 billion of fraud existing out there, and they recouped, what, 6.2 billion, of which 5.7 billion was tied to the health care industry. That's not even the tip of the spear. If you're talking about $100 billion, a fraud that exists.
00;34;52;10 - 00;34;52;20
Sean Weiss
Yeah.
00;34;52;22 - 00;35;11;22
Jonathan Porter
And it's sort of staggering to think about when I think for legitimate providers who are listening that that's that's who is largely listening to their legitimate providers who would go to me or to you, Sean, what they've got to know is they've just got to think when you have your billion coding guidelines to your team, if you're doing something systemically, you've got to know why you're doing it.
00;35;11;23 - 00;35;33;08
Jonathan Porter
And if everything is getting tagged with a particular modifier, you better make sure that you're right about how that's being used, because as you said, Sean, the governance is getting much better and how they're viewing data. And that's not going to just fly by. Maybe it was at one point where you just tag everything with 25 modifier, get an extra E&M payment for every single global procedure you're doing that it's not going to happen that way anymore.
00;35;33;08 - 00;35;47;23
Jonathan Porter
So you got to know what you're doing. Sean, last question. Let's zoom way out for this last question five years from now. What does health care compliance look like? What does health care enforcement look like? Where are we heading? Close this out with some expert prognostication.
00;35;47;26 - 00;36;07;15
Sean Weiss
Oh gosh, I wish I had a crystal ball on this. I can tell you where I really wish it would go. I wish you would go back five years, five years from now. I wish we would go back ten years because I think it was a reasonable period of time, like right before we went into Covid. You know, the mess with Covid.
00;36;07;17 - 00;36;28;17
Sean Weiss
I think we were really in a good place from a regulatory standpoint. I think CMS was for every one new regulation that was being put in, ten were being cut out. Unfortunately, I think where we're at right now, because there are competing forces within the Trump administration, and it really, I think, is going to depend on what happens in the midterms.
00;36;28;24 - 00;37;11;14
Sean Weiss
On who maintains control of the House, who maintains control of the Senate, what happens to the White House in 2028? I think that's going to have a significant impact on where things go in the next five years. I think at the end of the day, we are going to find ourselves in probably an 80% controlled AI industry from the business, a medicine standpoint, from a chart review standpoint, because again, now with AI, you can take a document, you can drag and drop it into one of these bots and you can say, analyze this note and show me all the vulnerabilities and show me all the areas where this fails to support the moderate level of
00;37;11;14 - 00;37;37;11
Sean Weiss
complexity for medical decision making based on AMA, CMS guidelines. Do I think auditors and coders could find it harder to get a job? Maybe. I hope that's not the case because I'm still an auditor and coder at heart. I think there's always going to be a need for compliance professionals. There's always going to be a need for criminal defense attorneys, prosecutors, people of that nature.
00;37;37;13 - 00;38;09;26
Sean Weiss
But I do think the day to day operations that are tied to the coding, billing, appeals, I think those things are going to continue to exponentially grow towards a total automation, which scares me. But again, there's always these possibilities that on what happens with, like the Shapiro Administration in Pennsylvania, the outcome of their litigation in this case, if they can prevail in this case, I think that sharp lead changes the trajectory of how these AI companies are going to grow.
00;38;09;29 - 00;38;44;11
Sean Weiss
And I want to be really clear, because I don't want anybody saying that I'm opposed to AI. I'm not in any way, shape or form. I think if you use AI responsibly, if you understand what it is that it's a tool and that it requires human intervention, human engagement, front end, middle and back end, I think people will find it to be an incredibly beneficial tool, but my expectation is from an enforcement standpoint, I think the 5.7 billion that was collected last year, I think they're probably going to double that this year or come very close to that.
00;38;44;14 - 00;39;01;25
Sean Weiss
And within five years, I think what this administration has put in motion with RFK, Oz, Brandt, Trump, Vance, I think they're going to hit that $100 billion in recovery. I really do probably in five years and would not shock me.
00;39;01;27 - 00;39;19;01
Jonathan Porter
Yeah, sure. As a taxpayer, I would love to see the government making excellent use of the data. I was as many tools as DOJ had when I was there. I was surprised that there weren't more. And I know that there's a bunch of people. Brenna Jenny, one of them who's talked a lot about how DOJ just needs to get better with data.
00;39;19;01 - 00;39;29;07
Jonathan Porter
So if we're at a spot in five years where DOJ is recovering that amount, I think there'd be a lot of people very happy about it, because I think you're right. There is a lot of fraud out there.
00;39;29;08 - 00;39;56;21
Sean Weiss
Yeah, there is. And my hope is that the career prosecutors and I'll close all my final words by saying this. It has been a complete honor and privilege to work in an industry now for 30 years, spanning four decades, that has been so rewarding for me emotionally, professionally, to be able to help people in really bad situations and to also help the government, you know, go after the bad actors from time to time.
00;39;56;21 - 00;40;43;20
Sean Weiss
And I make no bones about it. If somebody has committed fraud, they deserve to pay the price that they're going to pay. The unfortunate getting caught in the wide net that gets cast sometimes by the government is unfortunate. And those are the individuals that deserve the very best defense, and they're going to get it. I just hope that those who are listening to this program can deploy some common sense, can be pragmatic with their approach to engaging with technology, engaging in how they advise their clients to engage in a culture of compliance to ensure that they are in lockstep with the laws, the statutes, the acts, the regulations, and on those areas where it's high
00;40;43;20 - 00;41;03;05
Sean Weiss
level of ambiguity as our government likes to push out from time to time, push back, fight and stand your ground. But at the same time, you know, I tip my hat to the career prosecutors, the career investigators at OIG, program integrity. I mean, these are good men and women. They're hard workers, you know, they're dedicated to their craft.
00;41;03;05 - 00;41;25;03
Sean Weiss
They care and to match them. On the other side are now people like yourself, myself and others who are career advocates for physicians and other types of providers. So hopefully we can come together, have meaningful dialog, find a way to eliminate some of the harshness in ferreting out these bad actors and preserving the integrity of the system and the integrity of the providers.
00;41;25;05 - 00;41;51;27
Sean Weiss
That's the one thing I hope maybe you could talk about on the future podcast. As a fan of your podcast, I would love for you guys to broach the topic of indictments and the public announcements of providers being indicted in the fact that even though they're not guilty, they're guilty in the public court of opinion, and that is just as bad as anything else, if not worse, because it ruins reputations, lives.
00;41;52;00 - 00;42;08;00
Sean Weiss
And that's always been one of my biggest issues with DOJ putting out indictments on the internet. And it just sitting out there forever, even after somebody has been acquitted. But that's just my ask for maybe a future podcast if you want to broach that with some of your friends.
00;42;08;03 - 00;42;23;21
Jonathan Porter
Yeah, I know it's not just indictments, it's the false Claims Act as well. I've got several clients that are in the healthcare space, and they care just as much about the press releases, the dollars. And so it could be really bad because when DOJ puts out a press release, everyone says, well, they must be the worst person in the world.
00;42;23;23 - 00;42;43;06
Jonathan Porter
I don't know why our human minds are like that, but that's where a lot of people go is they might say, well, if DOJ has said that you violated this fraud law, then you just must be awful. What people don't realize is a lot of people in health care who get tripped up in the False Claims Act all the time, some who didn't do anything wrong and they are tired of paying lawyers to defend them.
00;42;43;06 - 00;43;01;01
Jonathan Porter
And they say, okay, after many years of defending this investigation, I just want this to go away. That happens all the time. I mean, there's big universities who have messed up and had small FCA settlements, and the press releases are still just as bad. So I'm with you there. Sean, thanks for coming on. The podcast has been really a lot of fun, so thanks for coming on the podcast.
00;43;01;03 - 00;43;15;18
Sean Weiss
Jonathan, it's been nothing short of a privilege and an honor to be able to hang out with you, a fellow Georgian. You're a great guy, great podcast. I'm a huge fan. I hope people are listening to you, hope that you continue with all the success that you're having at Husch Blackwell. And thanks for everything that you do, man.
00;43;15;18 - 00;43;16;19
Sean Weiss
Appreciate you.
00;43;16;22 - 00;43;33;23
Jonathan Porter
Thanks, Sean. So for people who want to listen to more of Sean's stuff, The Compliance Guy. The Compliance Guy, weird, my little podcast, plugging your big podcast. But I'll go and do it. Compliance Guys. Sean's podcast, so you can find him and us wherever you listen to the podcast. But to our listeners, we appreciate you listening to us.
00;43;33;23 - 00;43;48;08
Jonathan Porter
We're going to continue to keep bringing you this type of content, talking about healthcare enforcement, false claims enforcement. So to our listeners, thanks for listening, and we'll see you next time.