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00;00;00;00 - 00;00;35;01
Meg Pekarske
Hello and welcome to Hospice Insights: The Law and Beyond where we connect you to what matters in the ever-changing world of hospice and palliative care. Hospice Audit Updates: Hospices Fare Well in Federal Court. Now Bryan here is a title that's just straight into the point. No pun, wording or anything. But this is all business here. We're in federal court and all of these states all over the country.
00;00;35;01 - 00;00;54;26
Meg Pekarske
And I know we've talked about these on the podcast, but we actually have some really, some really good and helpful news that just for the hospices that secured those victories, but for the industry at large. So, so tell me, what's cooking?
00;00;54;28 - 00;01;23;15
Bryan Nowicki
Right, Meg. And yeah, this is timely because it's just been in the past few weeks that our efforts that started well for you and me, Meg, it started decades ago when we were kind of figuring out these arguments and and trying to find the opportunity to make them. And then 18 months ago, when I think we filed our first federal action, and then fast forward to March 31st of 2025, we got a couple of decisions.
00;01;23;17 - 00;01;58;02
Bryan Nowicki
One of them out of Texas was a really positive decisions for that hospice for the hospice community. Because the court in that decision accepted all of our arguments. And what that means is, these cases are about challenging the ALJ, administrative law judge decisions. And we have seen, in our view, for some time that ALJ, their opinions kind of, go over into them assuming the role of a physician when they don't have the medical training to do so.
00;01;58;04 - 00;02;35;04
Bryan Nowicki
We believe they're rejecting our actual physician testimony without a good basis to do so that they're applying the LCDs as if they were requirements and not guidelines, and they're failing to apply this statute that really gives hospices some latitude in making eligibility determinations, understanding how our inexact that can be. And so this, Texas case found in our client that hospices favor on all of those issues, we had lost at the ALJ, we got a fully favorable at federal court.
00;02;35;04 - 00;02;59;03
Bryan Nowicki
So it's just a matter of remanding. And the court said, well, I'm going to send this back to the ALJ to order that this hospice reimburse the entire amount of that overpayment. With interest. So it's really going to work out well for that hospice. So that was really a culmination of a lot of time and effort on our team's part in putting this all together.
00;02;59;06 - 00;03;28;13
Meg Pekarske
Yeah, it feels I mean, it's a great victory. But as you said, Bryan, it's like, stop by. I've been talking to you about for 17 years or however long we've been dealing with these audits. And the one that I think jumps out at me when you think about legal construction is just that statutory waiver of liability that was built into the law.
00;03;28;15 - 00;04;01;25
Meg Pekarske
That's, and Congress was very clear. It's like a hospice is our insurance company act like insurance companies. They have to cover everything, related to the terminal illness. So essentially everything at a very costly time in people's health care life and, you know, people shouldn't shouldn't just willy nilly take that money back if they disagree about six month prognosis because they've gone out and paid all these bills and paid the staff members.
00;04;01;25 - 00;04;33;28
Meg Pekarske
And so it's actually written into the law, the statutory waiver of liability. And we've been making, you know, arguments, tailgates days for, for decades about, hey, look at what Congress that look at what the statute says. What meaning does this have? It never is applied. And so so tell me a little bit more about, what the judge decided in Texas on that front.
00;04;34;01 - 00;05;00;24
Bryan Nowicki
Right. And it's, the judges have have been consistent in the way they've approached that issue. Now that that waiver of liability or limitation of liability, it was based on a question of whether the hospice had a reasonable belief that it was going to get paid for the services it provided. In other words, it may have been right or wrong about whether the patient actually was going to die in six months.
00;05;00;24 - 00;05;26;05
Bryan Nowicki
But it did have it did at least have a reasonable belief that the patient had a terminal prognosis. The ALJ could have handled this in a way that I think includes an inescapable contradiction. What they have said is CMS has published the LCDs, they have regulations defining terminal illness. All of that is out there to hosp for hospices.
00;05;26;09 - 00;05;50;19
Bryan Nowicki
You know, they can review all of that. And had they reviewed all that, they would have known that these patients were in eligible. The contradiction is that CMS and Congress have said, with respect to the LCDs and with respect to those regulations, that prognostication is an inexact science. And even very good hospice physicians aren't always going to get it right.
00;05;50;22 - 00;06;19;05
Bryan Nowicki
And this judge, though no ALJ, has really confronted that contradiction. This judge did. And he specifically questioned about, the the adequacy of the regulations in the LCDs to put that particular hospice on notice that these patients, and their medical records that our expert said fully support eligibility, that that somehow they should have predicted that they were going to get denied.
00;06;19;07 - 00;06;40;01
Bryan Nowicki
The LJ just said the just those regulations, are not enough. There's other ways that CMS could have shown a lack of reasonableness, but in that case they didn't. And so we were able to win on that issue. And that's separate from all the other ones. But if we only won on that one legal question. It would have been the same outcome.
00;06;40;01 - 00;06;53;08
Bryan Nowicki
We would have won a full repayment with interest. So we're, you know, in all these cases, we have multiple arguments backing one another up. Stated in the alternative. And it really paid off in that case.
00;06;53;10 - 00;07;36;02
Meg Pekarske
Well, I guess the thing that strikes me, Bryan, is for decades and you've listened to my tirades about this, is it's like, if you don't like this, change the law, but don't rewrite law by application and enforcement because it does lead this to this conundrum about, well, how is the, how do you reconcile the fact we have all this audit activity and recruitment and this big machine of audits, and then any time you explain to a client this waiver of liability, limitation, liability, it's like, how, how do we have all these audits?
00;07;36;02 - 00;07;53;25
Meg Pekarske
And obviously when, when Congress wrote this and it wasn't part of the, 1983, I think it was, was that in the late 90s, Bryan, they added the waiver of liability early 2000 or something.
00;07;53;25 - 00;08;06;25
Bryan Nowicki
I think it was in the late 90s. In that time frame, the, version of this statute existed for home health. And then they added a hospice component, because of the uncertainty of prognostication.
00;08;06;27 - 00;08;17;00
Meg Pekarske
And so, as we all know, I mean, the LCDs don't answer the question. The regulation does not answer the question.
00;08;17;03 - 00;08;17;22
Bryan Nowicki
Yeah.
00;08;17;24 - 00;08;42;24
Meg Pekarske
Is someone going to die within six months? I mean, right, if if we could predict that with like absolute certainty, you know, but that's not what the law requires. It's like, was that reasonable. And so so it just it feels like one of those victories that are like it feels like common sense. It's like, well, this is what should have happened 15 years ago.
00;08;42;27 - 00;09;08;19
Meg Pekarske
But, you know, with why we're now here is because there's just the audit activity has increased so much. And there have been, as we've talked about on the podcast, a number of ALJs who have issued very unfavorable decisions to hospice. So there's enough money at stake that, you know, we're going to these higher levels of appeal.
00;09;08;19 - 00;09;35;13
Meg Pekarske
And so, as you said, that started 18 months ago. And so this was a really, exciting case. And I just think super reasonable in terms of just on that mere piece, obviously, we won on on, you know, other issues. And, and that decision is, is public. So, Bryan, could we link that, that in our podcast notes to, to the court case?
00;09;35;15 - 00;10;00;19
Bryan Nowicki
Absolutely. It'll be in our notes. Well, we'll, we'll provide a copy up there. It is. There's a couple of decisions actually to get the full picture. Both of them very favorable to us, just the way the procedure worked out. So we'll we'll link both of those and you can see those, and when you do the kind of a volume of audit work that we do, we are very successful all the way through the appeal process.
00;10;00;19 - 00;10;36;22
Bryan Nowicki
But yeah, with the increase in certain audits, especially these, center for Program Integrity audits, we've had some, big dollar values get past the ALJ, which precipitated these court actions, which I think we're finding a silver lining because these court cases have the possibility of affecting downstream or upstream whatever stream it is. But maybe this will affect how ALJ approached these and benefit everybody who is going before ALJ is that they just can't make the same internally inconsistent holding as they have been.
00;10;36;22 - 00;11;11;06
Meg Pekarske
Yeah. Well, it was a great victory. It felt like all right already. This should have been the way things were. But as you said, Bryan, it just it took a while because I think someone going into a forum that isn't. I mean, it's such boilerplate when you get, waiver of liability decision from a ALJ, it's like verbatim, and it's like, you know, super short a few sentences as to why it doesn't apply.
00;11;11;06 - 00;11;16;14
Meg Pekarske
So, any other helpful takeaways from these cases, Bryan?
00;11;16;16 - 00;11;39;11
Bryan Nowicki
Well, you know, we have a number of these cases going forward. This Texas case is going to help our other cases. And it doesn't necessarily know success can be measured in a number of different ways. Certainly this decision was a great success. We've had other clients, in federal court, and CMS has approached us, interested in trying to settle cases.
00;11;39;14 - 00;12;02;28
Bryan Nowicki
There is risk in all of these cases. And winning is not a guarantee. So there's been some cases where we've been able to work with CMS on behalf of our clients to settle them and and recover some substantial parts of these alleged overpayments back from the government without, really having to go through that process. So I count that as a win as well.
00;12;03;01 - 00;12;24;03
Bryan Nowicki
If we're meeting the client's objectives of mitigating the amount of an overpayment, maybe not winning all of it, but winning back, you know, high six figures, from from those, if that's what our client wants. Let's do that. Let's get you some money back, and then you can kind of move forward with that. So we got some more decisions that we're expecting in the very near future.
00;12;24;03 - 00;12;35;19
Bryan Nowicki
We'll be keeping everybody up to date on those outcomes and how this whole, campaign is, going forward, as some people have described it.
00;12;35;22 - 00;13;03;00
Meg Pekarske
Yeah. Well great job, Bryan. This is many, many, many years and hours in the making. And just like the amount of mental space in my life I've been given this issues, it's like, well, at least I. We got a victory before I'm dead. So that that that was good. I was was not all for or for ways there.
00;13;03;03 - 00;13;19;26
Meg Pekarske
Because this is how you and I first met as me, like, been pounding on the table. This doesn't make any sense, Bryan. I need your help. I need your skills, on my team to help me battle this. So cheers to you.
00;13;19;28 - 00;13;40;16
Bryan Nowicki
Yeah, well, thanks, Meg. Thank you. I mean, this is this is a team effort all along. We got a lot of folks on our team working on these very hard, making the arguments. And. And, Meg, the kind of the these arguments started with your brainstorming. And, yeah, we're gratified to see some good results coming out of this. So thanks, Meg.
00;13;40;18 - 00;14;00;27
Meg Pekarske
Well, that's it for today's episode of Hospice Insights: The Law and Beyond. Thank you for joining the conversation. To subscribe to our podcast, visit our website at huschblackwell.com or sign up wherever you get your podcasts. Until next time, may the wind be at your back.