This transcript has been auto generated
00;00;00;00 - 00;00;24;07
Jonathan Porter
Welcome to another episode of Husch Blackwell's False Claims Act Insights podcast. I'm your host, Jonathan Porter. Last month, I was speaking at a healthcare compliance conference, and also speaking at that conference was a senior CMS official, someone appointed by President Trump to handle operations at CMS. She was talking about all the interesting things that CMS is going to do to improve health care.
00;00;24;10 - 00;00;47;05
Jonathan Porter
But one thing she said caught my ear more than anything else. And it's when she said that gone are the days where CMS is going to allow Medicare and Medicaid to get ripped off, and then they try to chase the money afterward, she said. Instead, what you can expect going forward from CMS is a robust use of CMS as payment suspension powers.
00;00;47;07 - 00;01;10;29
Jonathan Porter
That really caught my ear because payment suspensions are a huge deal in False Claims Act investigations. They can really change how false Claims Act investigations work. And it's really worth discussing because it's going to change everything. And so this podcast episode where we talk about payment suspensions, what they are and how they change the calculus in False Claims Act investigations.
00;01;11;01 - 00;01;42;28
Jonathan Porter
Joining me to talk about this really important new issue is my law partner, Bryan Nowicki. Bryan is a partner in Husch Blackwell's Madison, Wisconsin office. And for those who really love Husch Blackwell's various podcasts, you may know him from the Hospice Insights podcast too. Bryan and Meg Pekarske, our other law partner, do this excellent Hospice Insights podcast, one that I've been on a couple of times and one that I just blatantly ripped off in creating this podcast, the False Claims Insights podcast.
00;01;43;04 - 00;02;05;23
Jonathan Porter
I even just stole the name. There's is Hospice Insights, mine's false claims insights. That's how badly I ripped off Hospice Insights, because I wanted to just be half as good as Bryan and Meg's podcast. And so Bryan has a lot of experience helping our firm's clients with False Claims Act investigations and commercial litigation. And he's got specific experience battling the government in payment suspensions.
00;02;05;23 - 00;02;13;21
Jonathan Porter
And so our guest today is the great Bryan Nowicki. Bryan, thanks for coming on the podcast and telling our listeners a little bit about payment suspensions.
00;02;13;23 - 00;02;35;29
Bryan Nowicki
Well thank you Jonathan. Imitation is the sincerest form of flattery. So I certainly take that as a compliment. And your podcast is since you've started it off to a great start, I learn something new every time and very insightful. I appreciate the kind of practical guidance you give to our clients or listeners out there, so thanks for having me on, I appreciate it.
00;02;36;02 - 00;02;49;22
Jonathan Porter
Thanks, Bryan. You're too kind. Okay, so start off by giving us the basics. What are payment suspensions and what is the standard for CMS or maybe a state agency suspending payments during an investigation. How does all this work?
00;02;49;29 - 00;03;32;27
Bryan Nowicki
Sure. So a payment suspension is when the government in most cases the state and federal governments have really parallel processes for doing the very similar. They decide that they're going to cut off your Medicare or Medicaid payments while they investigate a certain matter. So the faucet goes off for an indeterminate amount of time, temporary, but it could be an amount of time that certainly causes some financial pain to the provider, but they're going to shut off that money until they suss out whatever allegations they're trying to review, and then they'll come to a determination on that investigation.
00;03;32;29 - 00;03;56;12
Bryan Nowicki
You may end up getting a big bill for what they believe is an overpayment, and they will take those suspended funds and just keep them, or maybe it'll go your way and they'll decide, well, we looked at this. We don't think it's an issue. So here are your suspended funds. And the standards are really broad. So it gives the government a lot of flexibility to impose this.
00;03;56;12 - 00;04;17;17
Bryan Nowicki
And in light of the comment you heard at that conference, I'm starting to get a little concerned about the government's effort in this area, because what they need to do this and I'll talk in terms of federal government generally, but what they need to do this is to have reliable information that an overpayment exists or a payment they made may not be correct.
00;04;17;17 - 00;04;44;16
Bryan Nowicki
That's one of the standard is the other one that's primarily used is that there's a credible allegations of fraud and credible allegations of fraud. What they mean by that is not very well defined except in very broad terms. It must be an allegation with some indicia of reliability. I can't imagine a softer term or a term more subject to a broad interpretation than indicia of reliability.
00;04;44;21 - 00;05;06;10
Bryan Nowicki
There's some reason that the government has to believe this allegation, whether it came from a hotline complaint data analysis, an actual complaint from a non-anonymous source, all of those are accepted sources to find that information and then put in to process this payment suspension.
00;05;06;12 - 00;05;24;27
Jonathan Porter
Thanks, Bryan. Yeah, that's the big takeaway that I want our listeners to know upfront is that the standard is really easy for the government to meet. This is not one of those things where you've got to show beyond a reasonable doubt, or you don't have to go before a magistrate judge and say, hey, judge, I want to cut off their payments.
00;05;25;04 - 00;05;46;01
Jonathan Porter
This is an intra agency decision, and it's largely deferential to any sort of a court review. And we'll talk about that in a little bit because there was a recent court review. It's a very pro agency. And so the big news here is if CMS or a state agency says we're going to cut off funds, well, there's really not a whole lot you can do about it.
00;05;46;03 - 00;06;08;27
Jonathan Porter
We're just sort of supposed to trust their judgment on that front. But Bryan, you know, thinking about this a little to me talking big picture payment suspensions, I think they make a lot of sense in certain types of cases thinking about, you know, romance scams or embezzlement that are ongoing. I think it makes absolute sense to stop the bleeding and cut off any further victimization.
00;06;08;27 - 00;06;28;16
Jonathan Porter
I think that makes we're all in favor of that. But to me, Bryan, it's harder to wrap your head around the concept in health care cases. And I think that's because there's a lot more gray area in health care investigations than anything else. And so, Bryan, why is that? Tell us about why in health care investigations, this could be a sort of a big deal.
00;06;28;18 - 00;06;56;17
Bryan Nowicki
You know, in health care investigations, because you're talking health care and a lot of times it implicates physicians or other clinicians making clinical judgments about whether care services interventions, whether they're reasonable and necessary. Again, a lot of soft words here and a battle that I get involved in for hospices and home health companies and physician practices is are the services being provided reasonable and necessary?
00;06;56;19 - 00;07;24;15
Bryan Nowicki
To give you an example of, in the hospice context, where I've kind of been involved in payment suspensions, a number of times, the linchpin of eligibility for hospice is whether the medical records support that a person had a life expectancy of six months or less. So CMS is having physicians make a prediction in an area that Congress, in enacting the Medicare hospice benefit, said is an inexact science, and CMS is on board with that.
00;07;24;15 - 00;07;48;03
Bryan Nowicki
And all the coverage, guidelines and materials acknowledge this is a gray area. And so that extends beyond hospice. Of course, in the home health field, is a patient homebound or not? That's a clinical judgment to make. And in physician practices, when I've worked with those dealing with payment suspensions, you know, is this certain intervention or injection, is it experimental or not?
00;07;48;10 - 00;08;21;02
Bryan Nowicki
Is it something that relates to post-operative care or some other benefit? Is it off label? The government has some guidelines for all of those, but the guidelines are often just that. There may be some areas where the government has, like a local coverage determination, where it is more black and white. But in health care, a lot of this is really a gray area, and we're always battling the government when they have their contractors saying this medical record is not good enough, and we have our experts saying, yes, it is, and we go to hearing on that.
00;08;21;04 - 00;08;43;13
Bryan Nowicki
When you put it in the context of a payment suspension, it all happens right away. You get your money cut off with the payment suspension. They're not really interested in duking out the merits of whether something is reasonable or necessary. They're going to keep your money and then do their investigation. And then your ability to make your arguments on the merits is really delayed significantly.
00;08;43;13 - 00;08;45;22
Bryan Nowicki
While the money runs dry.
00;08;45;24 - 00;09;05;26
Jonathan Porter
Yeah, Bryan, and I think that's the key point in all of this, is it really changes the way that these outcomes are coming about when I was at DOJ, I handle some really big egregious health care fraud schemes. I mean, we're talking billions of dollars that were going out the door and in those types of cases, yeah. Makes sense.
00;09;06;01 - 00;09;33;17
Jonathan Porter
We've identified this big international kickback scheme and we're going to stop the bleeding. We've got enough evidence where people have already been indicted. So we're going to cut off this, stop the bleeding. And that makes a lot of sense. But here's where I get really nervous is if we're in the middle of these false Claims Act investigations into gray area things, let's say, you know, DOJ says, well, you were billing office visits at a level four.
00;09;33;17 - 00;09;49;00
Jonathan Porter
And our reviewer says these should have been a level two. And so we're going to suspend your payments. That's a big deal. I mean that's essentially ending things. And we'll talk about why that is in a second. But before we get to that, Bryan, I want to sort of cover the scope or the breadth of these payment suspensions.
00;09;49;00 - 00;10;11;24
Jonathan Porter
So in your experience, Bryan, when CMS suspends payments, are they just suspending payments for certain claims or are they doing it for everything? So for example, if doctor bills Medicare for 50 different CPT codes, but OIG takes issue with just one of those codes, does CMS suspend payments for just that one CPT code or date? Suspend payments for everything?
00;10;11;26 - 00;10;36;20
Bryan Nowicki
Well, the regulations they allow CMS or their contractors to suspend payments in whole or in part, so they have that authority. But in my experience, they usually lean towards the 100% payment suspension. And so despite that authority to maybe customize it to the issue, I think they're erring on the side of let's just suspend everything. And they have that ability to do that.
00;10;36;20 - 00;11;01;03
Bryan Nowicki
They have a lot of discretion to do that without a lot of ability for providers to challenge them on doing that, there's not a lot of review or judicial review that can be imposed on these. So when you go through this process of having a payment suspension just to kind of build up to that consequence, you may or may not get advance notice that this payment suspension is being in place.
00;11;01;03 - 00;11;27;16
Bryan Nowicki
Then they can decide we don't want to give you advance notice because in doing so, we think you're going to scam us out of more money so you don't get that advance notice. These payment suspensions are in place for 180 days. They can be. And then after 180 days, they can extend them beyond that. They can go. If it's that allegation of fraud, they can go on for 18 months before the presumption turns back to, well, government.
00;11;27;16 - 00;11;45;09
Bryan Nowicki
What are you going to do here? You got a Fisher cut bait. What's keeping these providers out on a limb? So it goes for a long time. And I think during that time my experience is it's 100% cut off. And there's a couple things you can try to do to to shorten that where the suspension is put into place.
00;11;45;09 - 00;12;18;11
Bryan Nowicki
Because there's information, reliable information of an overpayment. The regulations say CMS, you got to move as quickly as possible to get to a decision. So that's helpful. Also, if you're able to say this payment suspension is going to threaten access to care, there is a way to submit what's called a rebuttal to a notice of suspension. There. You can try to plead your case not necessarily on the merits of these allegations, but just practically speaking, is this a threat to care or are there other less severe sanctions?
00;12;18;14 - 00;12;44;20
Bryan Nowicki
And I've made that argument about how about something less than 100%? One case that comes to mind. It's a hospice case. They suspended payments to a hospice because they had reviewed, a very small number of claims, five claims, ten claims out of the thousands and thousands this large hospice did, and they only reviewed Alzheimer's patients claims, and it was only for one month.
00;12;44;20 - 00;13;05;05
Bryan Nowicki
And as a result of that, they suspended all payments. We argued, why don't you just suspend payments for Alzheimer's patients? We don't need to suspend them. For those patients who have been on service for over 180 days or something like that, nothing doing. So we did have a call with CMS, and I think we were able to get them to expedite their review.
00;13;05;07 - 00;13;18;14
Bryan Nowicki
So instead of 100 days, it was about four months. So you just got to find your opportunities for advocacy in this area. As you're trying to figure out what's the best thing you could do to to survive these payment suspensions?
00;13;18;17 - 00;13;36;04
Jonathan Porter
Yeah, Bryan, your experience is mine as well. You know, thinking about how if you're a CMS, it's easy to just turn off the faucet. It's much harder to try to, like, filter out the particular ones. And so sometimes CMS, they just push the easy button and they say all payments suspended, but you're taking a sledgehammer to a fly.
00;13;36;04 - 00;13;58;08
Jonathan Porter
And a lot of those cases and that's really not the way that I think we want our government to work. If we have a disagreement as to something where we're saying, is there eligibility or not? And it's not that like clear cut fraud, it's really hard for me to stomach. Why are we just completely stopping everything when we just have a disagreement on the merits of this issue and the big deal?
00;13;58;13 - 00;14;26;11
Jonathan Porter
And Bryan, you've this up perfectly. The big deal here is practicality. So what some may not realize is that health care providers are largely relied on continuing receipt of funds in order to keep the lights on. I've read in health care publications how most health systems are operating on 90 to 150 days cash on hand, and most government run programs like Medicare, Medicaid, that's a substantial part of their revenue that they need to keep the lights on.
00;14;26;11 - 00;14;37;20
Jonathan Porter
And so, Bryan, tell us, what is the practical impact of suspending these payments? How are health care providers supposed to survive? Keep the lights on when their payments are suspended?
00;14;37;22 - 00;15;03;29
Bryan Nowicki
Yeah, well, hospices are kind of an extreme example because over 90% of their revenue is Medicare. Another five plus percent is Medicaid and very small percentage is private pay or from other resources. So you cut off a hospices funding. They have zero cash coming in essentially for an extended amount of time. And that can be the end of that operation.
00;15;04;01 - 00;15;31;21
Bryan Nowicki
But I think the same is true with a lot of providers. Medicare, Medicaid is a substantial component of the revenue source for these providers. It goes into cash flow. Are you going to be able to pay your employees for the months, potentially, that this is going to be imposed on you? And it's such a drastic punishment that oftentimes providers, when they do try to seek relief, they go to court.
00;15;31;21 - 00;15;57;17
Bryan Nowicki
It's not a very high likelihood of success, but they go to court and say, judge, you got to help us. We're going to go out of business. If this payment suspension really lasts as long as it's supposed to last. We don't even have a hearing before they take all our money. And judges, I think, have been sympathetic, but their hands are often tied and they'll say, I understand your situation, but you signed up for Medicare.
00;15;57;19 - 00;16;24;20
Bryan Nowicki
You knew what you were getting into. You knew it that this is among the rules, that they can do this to you. So you kind of have to suffer the consequences. So practically, what I've seen when providers are in this situation, it's great if they have cash reserves that rainy day fund. A lot of the clients I work with, they have their operations, but they also have a charitable foundation which can lend a hand with some cash support.
00;16;24;22 - 00;16;51;23
Bryan Nowicki
Nonprofits may have donor resources. Keep good relationships with your lenders in case you have the need to go to them and say, we're in a jam. We need some additional lines of credit or extensions on loan payments to weather this, it'll really test your relationship with your lenders because you may be under a fraud investigation. That's might cause them to be concerned about whether they should be giving you any breaks.
00;16;51;25 - 00;17;22;16
Bryan Nowicki
But also with regard to your patients, are you able to transfer them to maybe an affiliated entity? So we've worked with some of our clients on, okay, this provider number is under a payment suspension. Can we move them to a friendly provider number and maybe continue to serve these patients, continue to have cash flow coming in for them and just kind of look at our organization overall, what's going to continue to be in existence and what is not going to continue to be in existence over a certain amount of time.
00;17;22;19 - 00;17;38;14
Jonathan Porter
Yeah. Bryan, I think you've hit the nail on the head in terms of the analysis. The big thing to know about payment suspensions, they really can help stop the bleeding. And that's good in a lot of situations because there's a lot of fraud. I know in your industry, the hospice industry, there are a lot of bad actors in the hospice industry.
00;17;38;14 - 00;18;04;20
Jonathan Porter
And so it makes sense that CMS has this tool to deploy. But it's essentially like giving the government and I win button. And they get to just push this button. Because once you turn off the dollars, if you're a nonprofit, if you're a small health care agency, then just can't survive. And so I think a lot of these healthcare providers, when the money gets turned off, you don't have the option of fighting much longer.
00;18;04;20 - 00;18;19;21
Jonathan Porter
And that, I think, is what you're going to see here. If CMS really is going to ratchet this up, you're going to see a lot of people settling things that they shouldn't settle, selling things where you want to proceed and try to get a decision on the merits, but they can't afford to get there. And that's the sort of tragedy in this.
00;18;19;24 - 00;18;38;25
Jonathan Porter
If it's going to be sort of weaponized as a blunt tool in non-egregious situations. So Bryan, you mentioned this. You're taking everything up perfectly. Thanks, Bryan. This is how I know you're a podcast pro is you know where I'm going. And you teared up. You talked about how courts deal with this. You're right. Courts have heard challenges to payments, suspensions.
00;18;39;03 - 00;19;00;23
Jonathan Porter
A lot of health care providers have said, look, we're being investigated. We think we've got defenses and the courts then opine on that. But as you said, they're very government friendly decisions because of the standards here. So, Bryan, there was a recent case a couple months ago in the District of Minnesota where a health care provider thought that they were going to win on the merits of the underlying decision.
00;19;00;23 - 00;19;20;17
Jonathan Porter
They thought there was an exception to the statute that was being pushed. And they said, we're going to win on the merits because we've got this exception. This is a legal issue. And so, judge, we want you to prohibit the state agency from cutting off our funds so that we can battle this on the merits. And a judge did not agree with the health care provider there.
00;19;20;17 - 00;19;26;18
Jonathan Porter
So, Bryan, you want to tell us a little bit about that case and what it means for enforcement and payment suspensions going forward?
00;19;26;21 - 00;19;52;02
Bryan Nowicki
Sure. Yeah. That's the new way case in Minnesota. And it's a case that's all too familiar in not a real happy way for these kinds of issues. It is a good example of how the courts normally address this. Now, there are some exceptions where providers can prevail on this, but the set up is classic. The government found what they believed to be a credible allegation of broad.
00;19;52;05 - 00;20;22;11
Bryan Nowicki
Based upon some of this provider's practices, it provided notice that they're going to suspend payments. And this was under the state law, actually. So here's an example of how state law really mirrors the federal law. But under state law, they were going to suspend payments. I think they called it withholding payments in Minnesota. And the provider went to federal court and sought a temporary restraining order to prevent the government from shutting off that faucet.
00;20;22;13 - 00;20;39;11
Bryan Nowicki
And they said, our due process rights have been violated, that they do have a good chance of winning on the merits of this underlying legal dispute. And the court did a thorough analysis of all the kinds of legal issues that you and I, Jonathan, know the courts have to do, and you have a likely to success on the merits.
00;20;39;11 - 00;21;10;21
Bryan Nowicki
Is there irreparable harm? Ultimately, the court made a decision consistent with what I've described earlier. It's too bad that you may go out of business, but there is really not an avenue for this kind of judicial review. There's an administrative process. So once this government investigation is over, you can appeal that cold comfort to a provider who's got to wait months or years for that investigation to happen.
00;21;10;21 - 00;21;38;03
Bryan Nowicki
And to conclude, while they are sitting, you're kind of without money figuring out what they're going to do with these patients. And the government in that case was even a bit critical of what that provider did or actually failed to do to prepare for this payment suspension. It got advance notice, but the government was saying, well, you know, this provider could have done more preparation, it could have addressed its cash reserves.
00;21;38;03 - 00;22;02;08
Bryan Nowicki
It could have made arrangements with its patients, it could have done other things to mitigate the effect of this payment suspension, but instead it decided to kind of put all of its eggs in trying to get a TRO. And the court acknowledged that I think the court was especially sympathetic to the patients of this provider, saying these patients, their care is going to be disrupted.
00;22;02;10 - 00;22;29;06
Bryan Nowicki
And I think that weighed very heavily on the court's mind. But despite that, despite new way going out of business, allegedly despite the patients being disrupted, you can see the court felt obligated. That really had no choice but to say request for TRO denied. I encouraged the parties to get together and resolve this quickly, but, it's not something that a court is going to be able to step in and address at this time.
00;22;29;08 - 00;22;49;08
Jonathan Porter
Yeah, that's exactly right, Bryan. This opinion, I think, is typical of opinions where health care providers try to get the payment suspensions unwound. They oftentimes say, look, I get the point. You're making the court say, I get the point you're making, but I can't step in and try to make a decision on the merits of this, because that's not what the law is right now.
00;22;49;11 - 00;23;09;01
Jonathan Porter
That's sort of the way the law is designed, is for CMS and state agencies to have pretty easy ability to turn the spigot off. And so that's what the court said. Bryan, you flagged the same line I did, which the court encourages a swift resolution of the investigation. But that's really when we talk about leverage in discussions with the Justice Department.
00;23;09;03 - 00;23;24;08
Jonathan Porter
If you're on the verge of going out of business, DOJ has got all the leverage. They can just continue to keep the payment suspension in place. You're not gonna have money to pay your lawyers. You're not gonna have money to pay your employees. At that point, DOJ has got all the incentive in the world just continuing to strain along.
00;23;24;08 - 00;23;44;26
Jonathan Porter
Their position gets stronger and stronger. And, you know, dicta from this opinion saying we hope that the parties will work together. Now, DOJ is going to take the leverage 100 times out of 100. That's just the way it works. So, Bryan, I think we're painting sort of a grim picture. I feel bad we're painting a very grim picture of what the enforcement landscape looks like when payments suspensions are invoked.
00;23;44;26 - 00;24;01;01
Jonathan Porter
But are there any takeaways from payment suspensions for healthcare providers listening? This is the takeaway from this podcast. Just be terrified. Is that it, or is there another takeaway here? And can health care providers do something now to stay on the right side of the compliance line?
00;24;01;04 - 00;24;29;26
Bryan Nowicki
Yeah, when I've spoken about payment suspensions before, I would say, well, yeah, it's terrifying, but thankfully they are rare. Now. In light of what you heard last week, I don't know if I can continue to keep saying they are rare. If this is kind of a tool that they're going to use more and more so I think when you look at all of the kinds of enforcement activity that is out there, payment suspension was really rare, and I expect it's still going to be rare.
00;24;29;26 - 00;25;02;22
Bryan Nowicki
I hope that they focus more on the government, focuses on really having meaningfully credible allegations of fraud and not just, shoehorning every kind of allegation or anonymous tip or whatever into some basis to suspend payments for the sole purpose of getting leverage and getting money or shutting that off. So that's kind of a hope. But there are some things that providers do have control over that they can do to try to be ready for this or address it if it happens.
00;25;02;24 - 00;25;23;04
Bryan Nowicki
And the court gave us some clues to that. And I've discussed a little bit, you know, so it's kind of an imagined do this experiment. What if your Medicare Medicaid revenue was shut off in a month? What would you need to do? You would want to see what your cash reserves are developed. The relationships with lenders don't wait till you get a notice.
00;25;23;04 - 00;25;51;25
Bryan Nowicki
Or don't wait until your, revenue is suspended. Start preparing for that now. The rainy day fund solid relationships. What's your referral plan or transition plan for patients? Do that preparation so you can weather the storm. Hopefully an outlast duration of a payment suspension compliance is also key. I mean these these allegations of fraud, the potential overpayment, they wind up being about where you are not complying.
00;25;51;25 - 00;26;17;17
Bryan Nowicki
I mean they have to be about you did not comply with the applicable laws. So pay attention to your compliance program, make sure it is robust, have third parties come in and give you an assessment from time to time? Some of our clients have like an annual compliance review by a third party. Do your internal auditing really having a healthy comply program is a great, what is it, an ounce of prevention?
00;26;17;19 - 00;26;44;08
Bryan Nowicki
Better than the pound of cure. Because. Because really, there might not be a cure. So you really need to focus on that prevention that is out there. Also, if you are subject to this, look for creative opportunities for advocacy. Your number one choice shouldn't be we're going to go to federal court. That's a last gasp chance. Your chances may be different in different parts of the country about having success in a court action.
00;26;44;11 - 00;27;14;06
Bryan Nowicki
Minnesota, especially based on New Way. You're not going to find the law really receptive to that. I think when I have looked into cases where there has been success, it's been Texas. I don't think Texas is real, necessarily a friend of the government with a lot of their judges. So where are you located? Maybe court is a more or less attractive option, but but before you get to court, you do have a rebuttal opportunity where you can try to express to the government the unfairness of it, the patient access issues.
00;27;14;08 - 00;27;40;14
Bryan Nowicki
I've done informal advocacy, contacting CMS, having conference calls about what effect this payment suspension can have and will have on patients, imploring them to move as quickly as possible in their investigation. So a lot of these turn into dead ends, but it doesn't mean you don't even pursue them. I think you continue to pursue them because you don't know which one is going to fit your situation.
00;27;40;20 - 00;28;11;27
Bryan Nowicki
And lately, just kind of a final thought on this lately, at least in the world I work in with hospices, home health, there have been ramped up enforcement efforts, especially in some Western states, where they seem to be taking a pretty blanket approach to prepayment and reviews and revocation of billing privileges. The bright light out of that, or maybe the silver lining, is when we have sought help from CMS to lend an ear so we can explain the unjust ness of the situation.
00;28;11;29 - 00;28;36;02
Bryan Nowicki
We found them to be reasonable, so hopefully that will also be the case. If they do increase payment suspensions, that they'll be more receptive to actually talking through these issues with an advocate, with the provider to make sure they're doing justice out there, and not just kind of using this immense leverage to get some advantage. That would seem very unfair to the provider.
00;28;36;05 - 00;29;00;09
Jonathan Porter
Thanks, Bryan. Yeah, that is spot on analysis. I think advocating to CMS is critical. I've found that to be extremely effective, finding the right person at CMS to have this conversation with. Because oftentimes the person making the payment suspension decision is not the person who oversees the program. And oftentimes the person overseeing the program knows whether you're on the right side of the law or not.
00;29;00;11 - 00;29;20;20
Jonathan Porter
You know, CMS is not a law enforcement organization. I don't know that you always get a fair shake with OIG, but I've found that CMS is not pro law enforcement. When I was at DOJ, CMS oftentimes was difficult for me to work with because they're not pro DOJ, they're not pro law enforcement. And so getting the right person at CMS, making the right arguments to them, I think is critical.
00;29;20;23 - 00;29;36;29
Jonathan Porter
That's why I'm happy to practice here at Blackwell. We've got this tremendously talented health law group, and we've got all sorts of good contacts. We've gotten some good results for clients in the past. And so I think when you're in this situation, you've got to make your way to people who know how to navigate these waters because they're tough.
00;29;36;29 - 00;29;54;15
Jonathan Porter
But there's a way you at least have a shot at getting through them. And that's by correct advocacy to CMS. And I think focusing on patient harm is got to be point number one in how you're doing it. So tell your client story to the right person at CMS. Make sure they know patients are going to suffer because of this.
00;29;54;18 - 00;30;16;05
Jonathan Porter
And there's a better way for us to do this. Why don't we, you know, narrowly tailor this or put pressure on whoever to end the investigation early. So, Bryan, all very good points. This is why I called you Bryan, because you're not just a podcast pro, you're a legal pro as well. So Bryan, thanks for coming on the podcast telling our listeners about this apparently coming Threat to False Claims Act investigations everywhere.
00;30;16;05 - 00;30;35;18
Jonathan Porter
So thanks, Bryan, for joining this podcast. And if you want to hear more of Bryan's amazing insights, go navigate towards the Hospice Insights and hear him and McCaskey talk about all sorts of interesting things on the hospice side. To close here, you know, we're going to continue to bring you these developments. The law is moving quickly in the False Claims Act.
00;30;35;19 - 00;30;52;09
Jonathan Porter
Again, like we said in the last episode, DOJ is moving more and more people into health care fraud. And so I think you're going to see more and more investigations. I think the law is going to continue to change in this space, and we're going to do our best to keep you apprised of all of the new cutting edge issues.
00;30;52;09 - 00;31;12;29
Jonathan Porter
And so continue to listen to us, and we're just thankful for our listeners, for listening to us so much over the last year or so. It's been a pleasure interacting with listeners who reach out and want to talk about issues. So thanks for that. But again, we'll see you next time. Thanks everyone.