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AHLA's Speaking of Health Law
Navigating Government Investigations in a Post-COVID World
Mark Silberman, Partner, Benesch Friedlander Coplan & Aronoff LLP, and Gary Cantrell, Specialist Leader, Deloitte, discuss government approaches to investigations during and after the pandemic and guidance for providers and practitioners when responding to government investigations. They cover some of the common areas of fraud that the government has identified, pitfalls that can get organizations into trouble, aggravating factors that the government will consider during an investigation, and the use of data. Mark and Gary spoke about this topic at AHLA’s 2023 Annual Meeting in San Francisco, CA.
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Speaker 2:This episode of A H L A speaking of health law is brought to you by A H L A members and donors like you. For more information, visit american health law.org.
Speaker 3:Hello, everybody. Uh, my name is Mark Silberman, and I'm here with Gary Cantrell. And we are going to take the opportunity today to talk to you about navigating government investigations in a post covid world. Uh, this is a follow-up to a presentation we did at the , uh, A H L A convention this year. Uh, Gary, you want to take the opportunity and introduce yourself? Talk a little bit about your background.
Speaker 4:Sure. Thanks, mark. I'm Gary Cantrell. I am currently with Deloitte , uh, focused on program integrity and , and government healthcare. Um , prior to joining Deloitte, about a year and four months ago, I spent 25 years at the US Department of Health and Human Services Office of Inspector General. For the last 10 years, I served as the deputy IG for investigations. So my career has, has and continues to be focused on investigating , uh, and , and remediating healthcare related fraud ,
Speaker 3:Allegations of fraud, of course,
Speaker 4:Allegations of fraud, and when the , when those allegations are proven, you know, we call our friends over the Department of Justice back in my old job.
Speaker 3:All right . And my name is Mark Silberman. I am , uh, partner at benish . I am vice chair of the Firm's National Healthcare Practice, and I am chair of the firm's , uh, white Collar and Government Investigations practice. I am a former state and federal prosecutor, as well as a , uh, healthcare regulatory attorney for the state of Illinois. So , um, maybe just , uh, oh, by the way, one of the things for anyone who's hoping that we might be talking today about specific cases or investigations , uh, Gary, based upon his time previously at O I G, is not allowed to discuss any of the cases that may have originated , uh, during his tenure. So what that effectively means is we cannot talk about anything particularly interesting that actually exists . So what we're gonna talk to you about today is just to give you a little recap of the presentation we gave, and then sort of give each of our takes on , uh, what we, you know, what we see coming and what guidance we think practitioners might want , uh, in giving guidance to their clients. Now, Gary, you have a tendency to use a lot of, we, so do you want to give your disclaimer when you do that?
Speaker 4:Yeah, thanks, mark. I appreciate that opportunity. So, if I say we, I am not , uh, actually representing the O I G, that's just still a little habit I have of, when I start talking about the work at O I G and the work that , um, the type of work that we did while I was there , um, I tend to use the word we, I will try to break myself of that habit while on this discussion ,
Speaker 3:Discussion . It's never gonna happen. I still refer to Wei and I do that, but , uh, the official acknowledgement that you are not speaking on behalf of , uh, the O I G has, you know, been,
Speaker 4:I do not speak on behalf of the O I
Speaker 3:G . Just so you know, we did an over under when we did the , uh, actual presentation, and I think it was about 22 times you had to say that. So <laugh> . Alright , so just a quick overview of the presentation we gave, we sort of set the table of how we got to the current circumstances , uh, that life was sort of plugging along. The government was engaged in ongoing and robust investigative enforcement efforts on healthcare. And then, you know, the world stopped, COVID came about, and, you know, everything, you know, kind of hit pause. And one of the quotes I used is, in the midst of chaos, there's also opportunity. And that, that idea, it's a sun tsu quote, it , it , it , it has a good and a bad, right? We didn't have any way to test for this, but we found a way, we didn't have a vaccine for this, but we found a way, right ? Healthcare really led the way people started to realize that what was at the core of essential workers was healthcare, right ? And so, you know, there was aspects of that opportunity that really were positive in life affirming and, and , and good. But that coin may have another side. And, you know, there was certainly the opportunity that some people saw to allegedly engage in , uh, in, in wrongdoing. And , um, we had some discussions about, you know, what happened. Like, Gary, from your perspective, you were still at O I g I mean, things kind of just stopped for a second, right?
Speaker 4:Things stopped for a second. But kind of as you pointed out in terms of our, our response to the, to the pandemic from a, a testing perspective, from a a vaccination perspective , um, you know, the government also adapted in ways to continue doing business, to continue investigating, auditing and evaluating the delivery of healthcare through, you know, in , in the , of HH , H H S O I G , Medicare and Medicaid. So that meant adapting the way investigations were conducted , uh, and like everyone else , uh, in the country and the world actually for that matter, find new ways of doing , uh, some of the same things , uh, utilizing technology , um, but also when, when the time was appropriate to get back out on the street and , uh, and conduct some of the more traditional aspects of investigations, like in-person interviews or search warrants or even arrest warrants. But , uh, no doubt the government during this time , uh, there was a pause. Um , there's only so much you can do from your desk, but there is a lot you can do from your desk with technology and the resources available with data, as well as the amount of information that is, is out there on the internet. But , um, the investigator's toolbox , uh, needs to include and, and needs to be adapted to allow for that , uh, on the street , uh, effort, if you will. And so that happened, you know, one of the earliest groups, and I think in government that were back out on the street, were the law enforcement and , and investigator community who had to get out and con in order to continue doing their jobs, but only after it was safe to do so.
Speaker 3:Yeah. And the idea is, you know, obviously with the limitations of bandwidth and capacity, it's fair to say like it investigations that got paused didn't just go away, right? They're starting to roll back out. We're starting to see them. Uh , but is it also fair to say , uh, there are a couple of areas of identified concern where people might have been misbehaving during covid and related to Covid? Is that, is that a , am I going too far out on a limb with that ?
Speaker 4:No, you're, you're, you're spot on with every emergency , uh, as you said, comes an opportunity and those opportunities to do great things, and likewise, opportunities to take advantage of the situation. And, you know , this is a case where , um, those who who wish to profit off of the pandemic , uh, illegally , uh, took advantage of the, the confusion, the, the , um, the concern , uh, on the part of citizens , uh, the need for treatments, the need for vaccines, the need for , uh, simply the personal protective equipment that wasn't really available in the early days. So, you know, fraudsters take advantage of these opportunities to, to solicit market and take advantage of individuals by using these, these, these, these , um, these lack, this lack of , um, understanding of a situation to capitalize on it and to , um, prey on individuals like a Medicare, the Medicare population , um, hit free covid test kit. Uh, if you call this number and share your information , uh, share , share your , uh, Medicare identification number. I was
Speaker 3:Supposed to give my social security number for that, right? Absolutely. Yes . I , I never understood why, but my bank account number too,
Speaker 4:Well, you know, it helps facilitate the payment of the claim and gets you that equipment so much faster. So there's all kinds of marketing , uh, ploys that can be done. It's basically social engineering in the context of, of , uh, traditional fraud taking advantage of, of a , of a point of confusion or emergency.
Speaker 3:Well, and look, we talked , I mean, the things there , there's, there's allegations of fraud with regards to covid testing with regards to P P E and the sale of it with regards to , uh, P P P , you know, the pro and then the provider relief fund. Um, you know , one of the areas that's, you know, we're I think government regulations and healthcare, which let's be candid, technology tends to move a lot quicker than government regulations. And private equity in healthcare tends to move a lot quicker than government regulations. One area where we really advance things meaningfully was telehealth, right? That we figured out how to make sure people still had meaningful access. And I think that is actually one of the most positive things coming out of the pandemic. But there are also people who took a little bit of advantage there, or allegedly have done so. Um, and you know, same thing with regards to vaccination. So one of the things that I think Gary and I realized where his past, his present, my past, my present, where we are really aligned is this idea of avoidance, right? Is that what can you do? Because the government's gonna be looking at these circumstances and they're gonna be trying to figure out, to Gary's point, just wanting to have profited from the circumstances isn't a problem, right? It's having wanted to profit illegally, and sometimes the distinction between whether you were doing it properly or improperly , uh, really can turn on nuance. That that's gonna depend on a variety of factors. And so part of what we want to talk to you about today is sort of this idea of what can people do to either avoid problems looking forward, or as they're looking back to some of the stuff that may come out of the pandemic , um, what can they be doing to prepare so as to reduce disruption, to reduce , uh, you know, being , uh, looked at through the lens of the criminal , uh, when you were, were not one. So, Gary, do you want to give us a couple of thoughts as to sort of like, from where you are, from what you know and what you've seen , uh, you know, what guidance might you offer to either providers who are listening to this or practitioners who want to give their clients good guidance? Good advice?
Speaker 4:Sure, mark. So it's, you know, a couple of things , um, that get, can get you in trouble. One is not having visibility within your own organization, not having a strong compliance , uh, operation within your, your organization that is empowered to raise issues and that are actually addressed , uh, as appropriate, of course, when they're raised. Um, because there's a couple things, you know, ignorance of an issue, you know, may not lead to a , a criminal , um, charges, but it certainly can lead to , um, other liability, financial liability. And, and of course, hiding something that you do know about can lead in the other direction , uh, in terms of criminal charges. So the reality is, you, if , if you have a compliance program, if you don't have a compliance program, you know, my opinion is that you should establish one. You should ensure that those compliance professionals have visibility within your organization. So they, they can help you identify risks early so that they can be addressed before they become large problems. And, you know, they should be empowered to speak to people who can make decisions , uh, in regard to addressing those risks. And , um, and those are , and , and I mean , most of this audience has heard that before. That's not news, you know, <laugh> , but it is, it is still , uh, it is still the truth in my, in my, my view.
Speaker 3:Well, and let's not kid ourselves. If you look at the false claims, that cases that come around a significant percentage percent our employees or former employees who raised the issues and felt like it was being blown off or ignored, right? We all complain about the opportunistic person who's just looking to make a dollar. And there are some, there are certainly people out there who are doing that, but a lot of cases are people who tried to raise it to leadership or tried to raise it through the compliance program, and it, and it just, they , it didn't take any traction and they felt they had no , uh, other place to go. I, I guess,
Speaker 4:Yeah, just on that point real quick, I mean, I think, you know, certainly anecdotally, not speaking with any, any for the O I G, but I think you're right there. I mean, who's going to , who's going be the first to alert the government to an issue within an organization? Someone with visibility , um, who, who has , who is not empowered to do anything about it internally, or is ignored internally, or that is in worst case, may be retaliated against for raising it. Now we have a frustrated employee who wants to talk to someone else about the matter that isn't being addressed, or, you know, a competitor who sees what they believe is an unfair advantage , um, because of the practices of, of one of their competitors. So, I mean, I think those, I think you hit the nail on the head. That's , um, it's very typical that those kinds of whistleblower activities occur from, from within.
Speaker 3:And I mean, again, not speaking on behalf of the OIG G but consistent with what you've seen, right? The oi the government has a lot of discretion on how to, right? I mean, when you just look at the false claims act or the self-disclosure, right? You have, you know, you can get one times, two times, three times, you know, recovery, you can then get per claim . And, you know, I won't lie, I had forgotten that the proclaim had the interest factor. Those numbers have gotten high, right? And, you know, one of the problems I guess I would say is in healthcare, anytime you have a mistake, you very rarely make it once, right? Like we talked about, you know, if, if it is a per claim thing, you one claim is never gonna get noticed for anything. It's when the same mistake gets made, 75, 35, you know, thousand times, right? And one, the government's always gonna frame that and look at that as a pattern of intentional wrongdoing or intentional disregard. But when you get into the, you know, proclaim potential, I mean, that's when these cases become, you know, 7, 8, 9 figure cases , um, what are the types of factors the government looks at for those aggravating, right? Like, I know you mentioned one, which is if you intentionally hid stuff, right? But like, what are the other, because I'll tell you the challenge that I hear other people talk about. 'cause my clients always only want to do the right thing, no questions. Of course,
Speaker 4:Of course.
Speaker 3:But, but other people's clients sometimes raise the question of, okay, we're gonna self-disclose this, we're gonna turn ourselves in, but come on, other people are doing this and they're not turning themselves in. And it's always a question of risk tolerance. But like, I think people hearing what some of those aggravating, like it's not just you were intent . Like if you were intentionally criminally engaged in conduct, you're , you're gonna refer it over to the criminal people. Still on the civil side, there's a whole lot of room for it getting a lot worse, right? And so, yes , like what kind of factors might the government consider, you know, in cases you've seen, obviously only publicly available information,
Speaker 4:Right? So again, not speaking on behalf of the O I G L , keep repeating that <laugh> , um, you know, it's one of those, there, there are several factors that would be considered in any case, but they're all, they all stand on their own merits, right? Um, again, did you know about it and not disclose it? How long did it , how long did the, the conduct, whatever it is , uh, persist? Is this years in the making? Uh, did it go unnoticed for years? Or is it a relatively new thing that you identified quickly? Um, how much money , uh, is involved , uh, is another factor. Certainly, you know, the most important factor I think for the government, and I think you can hear this in the , um, and , and the current leadership at O I G when they speak, it's , uh, did were patients , uh, put in harm's way in any in any way, yeah. Um, as a result of the, of the behavior that's under, under investigation or up for potential disclosure, all those factors weigh on, you know, how the government would approach , uh, an investigation and how, and, and , and likely how they would approach a resolution of an investigation. So, you know, the O I G , um, established the , the self-disclosure protocol for a reason , um, to encourage strong compliance programs. And, and when there is a strong compliance programs and you self identify an issue that you have an outlet to report it on your own, that would give consideration to that , um, that proactive approach , uh, in terms of deciding how to, how to ultimately deal with it as opposed to criminally or , um, civil false claims act, maybe a civil monetary penalty , uh, is appropriate. You know? So there's, you know, all those factors play into, you know, I think the government's decisions , uh, when to prosecute, when to investigate, but it's , uh, it's still gonna be a case by case basis. But you, the more proactive you've been in, in , in identifying the issue , uh, addressing it early, reporting it to the government, all those play in your favor, I would suggest.
Speaker 3:Well, and one of the things I always say is this, well, nothing's impossible. Uh, it certainly makes it a lot harder if you bring to the government's attention conduct of it's , of which it's unaware. It's pretty hard to then frame that as intentionally criminal if they had no idea, had no knowledge, and , uh, that you're bringing it forward as, you know, an inadvertent , uh, or a discovered mistake or whatever the issue is. Um, you know, one of the things I talked about that I think, you know , is important for people is to sort of break down two things. One is like, are we talking about something that happened, you know, during covid versus, you know, you know, how things are gonna be, you know, looking, coming out of it. Uh, one of the things that I found in addressing any investigation that arises to conduct that took place during c is it's fundamentally important for people to establish the timeline, right? The timeline of where during the pandemic were you, what information did we have? I mean, not to, you know, disclose any inform , but like, I, I have a case that I've been dealing with where one of the circumstances is , uh, it related to how a business handled having a , uh, a worker, a healthcare worker who tested positive for covid, and the conduct that they engaged in trying to best manage the situation, to your point, to protect patient care. Uh, it didn't comply with what the regulations were. Now, now, eight months later, they changed the guidance and you should do what they did, but they had already gotten cited for doing it. And the funny thing is, the government's actually taking the position. Yeah. But that wasn't our position at the time, right? Right . And so, but at the same time, people can use that, practitioners can use that in the other direction, which was, there was some guidance we were getting at various points. I mean, it was sometimes changing by the day, by the week, by the hour. And if what your clients did that now looks maybe suspect or bizarre was a completely appropriate at the time, you know, based on the information available. I mean, that's the kind of thing that I think the government has a hard time overlooking, especially when it's placed , uh, you know, documentable in front of them . Um, and so that's one of those things that if you know that you have a misstep or a series of missteps, or if you know you're under investigation, one of the first things I would encourage everyone to do is sort of try to answer that question of what information, what guidance was available at the time, and how can you use that , uh, going forward? Um , lemme ask you your perspective . How does it, when people can demonstrate they really have been giving thought to what they did, even if it turns out they stepped outta line,
Speaker 4:I think that's really important information to, to be able to share with the government and would certainly mitigate , um, uh, potentially mitigate the response or the reaction from the government in terms of how they're gonna , uh, approach the investigation of the resolution. And , you know, I don't think, again, Gary's personal belief that it's the intent of government , uh, or, or o i g or D O J to go after people who made honest mistakes based on rules that changed. Um, just don't, you know, when they, when they ask for the email or get your emails, don't have , uh, make sure that there's nothing in your email that suggests your decision making at the time was based on , um, some other factor than you're actually presenting to the government. Because, you know, you don't want to , um, if it's, if it's the position you held was the position based on your knowledge at the time, and, and that is, and , and you , you weren't actually working to back backfill that position with some , um, you know, some, a strategy after the fact, then you know, you're probably okay, go , uh, and get some, get some benefit from revealing that.
Speaker 3:I, I tell clients all the time, the e and email stands for evidence.
Speaker 4:So absolutely.
Speaker 3:Um,
Speaker 4:You know , cell phones , uh, or , you know, cell phones and, and , and computer laptop or laptops , uh, email, wherever that's stored risk source of information for investigators .
Speaker 3:So that's actually a great point, and I'll, I'll make you speculate, you know, 'cause you're not, you know, with government investigation now, but one of the things that fundamentally changed during the pandemic is we, we , we suddenly became a remote workforce. Everyone, and a lot of people are now still working, you know, in a remote environment. And just from the evidence collection perspective, both for the government and for, you know, lawyers who are trying to conduct an internal investigation or help people assess, I mean, how do you , how do you think that's gonna have changed from the investigative perspective in the sense of before when you collected emails, you know, you would just trust that someone was gonna go onto the government or , you know, onto the business server and pull it. But that may no longer be the case. And , uh, you know, from the guidance perspective to, you know , our clients, no one wants to turn over their personal laptops. Nobody wants to turn over their , uh, you know, their personal phones. Um, and I , look, I can say this as you and I both former investigative folks, we don't actually care about your personal stuff that's on your devices. We don't wanna see it, we don't wanna look at it in , in the unfortunate circumstances where we encounter it, it really is just unfortunately regrettable. But that doesn't change people's lack of desire to turn it over, right ? And so , um, that's one of the things I think people looking forward really have to give some thought to. Um, I was never a one cell phone , two cell phone person, right? I always, when I was with the government, when I was, you , actually , I had a phone, and that's what I used. Now, candidly, I wasn't engaged in any conduct I was particularly concerned about. Um, but as we're gonna talk about in a second, the idea of some of these adjacent cases, you know , um, how do you see that changing? I mean, do you see the government really pushing more to get personal info if they know, or personal identifications or , you know, like items and things like that. If they know people are working outside of the office ,
Speaker 4:Uh , of course they're gonna go to whichever device has the communication that they're interested in, that they believe is relevant to the investigation, and they have , um, probable cause to believe that it exists there. Right? That's the standard for a search warrant. Um, and I'm not an attorney, so anything I say that's , uh, not aligned with the law mark , just correct me. But , um, so the , um, the personal cell phone , you know, if it's known to be used for work emails, of course they're gonna , and do they trust you to extract those emails , um, and, and provide them to them? Well, probably not, but de it'll , it depends, but probably not. So they're gonna probably need to take that , um, that personal phone to collect that , um, evidence directly and sift through to find those that are the material that is relevant to the , uh, search warrant, let's say. But, you know, a lot, a lot more data, as we all know, is if you , if if you think about it, you know, a lot more data is, is stored not on your laptop, not on your, your cell phone , but in the cloud mm-hmm . <affirmative> and, and your , your emails, for example , um, your calendars , uh, maybe , uh, your photos, whatever it is, your, your docs, maybe you're using Google Docs or, or you're using any other form of, of office product , uh, uh, that stores data in the cloud. Those are also places that investigators would need and likely look to, to identify information relevant to the investigation. So, you know, whether it's on a personal device, on a, a business laptop or in the cloud, if they have reason to believe the information is in any of those locations, I think they're gonna, they're gonna look to that location to to to, to grab that information. Yeah .
Speaker 3:Well, and I think to that end, one of the things that people can look at proactively, and this will tie into to our next point , is 'cause let's be very candid, a lot of the times, even if, you know, your client's being investigated for something that they didn't do, but the government has a legitimate purpose for asking just the cost of evaluating and recovering the materials can be prohibitive. And, you know, it's, it's, it , it becomes a source of tension. It becomes an issue of complaint. So one of the things that you can do is in developing policies and procedures with your clients , um, you can give some serious thought to how is your work being done? How, how's it being communicated? How , I mean, I had one client who, they all had iPads, but they had disabled the text and chat functions for that exact reason. They wanted to have only a single form of communication because years earlier, they had had , uh, to go and recover from all of the individual iPads that all of the different people had. And it became, you know, something that if they had done it one way would cost, you know, a few thousand dollars and then suddenly became tens of thousands of dollars just to recover the information. And that is particularly frustrating. And this is, you know, we'll get to my buckets here, depending on the role that your client has. Now, for those of you who didn't listen to the , uh, presentation, I, I have what I call marks five buckets, right? Because whenever I get an investigative matter, I, I try to figure out what bucket is the individual in and the five buckets that I have identified, and they're not completely , uh, exclusive. And there can be disagreements as to where someone falls, but the first bucket is they engaged criminal, they engaged in criminal conduct. There are occasionally people who do bad things. Uh, the second is what I call criminal adjacent, which is you were not engaged in any wrongdoing, but you were involved in business or involved in some activity or planning with someone who was engaged in criminal conduct. Then unfortunately, there is a very large bucket, which I have labeled stupid. Um, and stupid is the, you engaged in conduct that was ill-advised, not well thought out of, not well documented any of these things where you weren't engaged in criminal conduct . But what you did doesn't necessarily make sense. And you're gonna have to explain it. And of course, if there are people who are stupid, then you have stupid adjacent, this is the legal equivalent of wearing that I'm with stupid t-shirt that points to whoever it is that's being investigated. And then obviously the last bucket is those who are wrongfully accused. And very candidly, for anyone who is not in that criminal bucket, it is incredibly frustrating when, because of who you do did business with, whether they were criminal or stupid, or in the event that , um, and we can touch on analytics with this, right? And in the event that the government is looking at something wrong, and you're being investigated, even though you didn't do anything wrong , um, it gets really, I mean, it gets expensive. It gets time consuming. It gets incredibly disruptive to what your primary business pro , you know, purpose is , uh, to have to pull this information and to have to produce this information to have to interact with the government. Um, whether it is, whether they're trying to assess whether you did anything wrong or even if they know you didn't do anything wrong, but they want your information to address someone else's conduct. And, you know, so , um, you , you know, I had one idea which was we should take, you know, some of the money the government collects and we should, you know, make it an investigative fund that people who were wrongfully accused can recover their expenses. Um, you didn't love that idea? <laugh> ,
Speaker 4:<laugh> , I don't see how it would work, but I, you know, I , I ,
Speaker 3:I , wait, I , I , I agree From a practical perspective it would be challenging. Um, but it's, you know, it's what what do you think the people can do? I mean, I think besides highlighting it really, I mean, who you, who you do business with right? Matters more than ever because you can be enga. Would you agree with that? You can be engaged in absolutely no wrongdoing, absolutely. But make yourself a necessary witness by who you did business with.
Speaker 4:I , you know , as you were talking, I'm thinking know who you're doing business with , um, and you said it. So , um, you know, that's, do your due diligence. Um, and obviously there's still the oppor the possibility that you may be doing business with someone who's , whose conduct you're not aware of. But , um, it is important to do your vetting and , uh, due diligence and to the best that you can , um, know who you're doing business with to avoid these kind of relationships. And I just wanted to add that I think there might be one more category in addition to your five , uh, and that's , uh, stupid criminals. So you have criminals, the stupid , uh, in your categories, but you also have stupid criminals.
Speaker 3:I would argue that the intelligent criminals are the ones. See, now this is a great , I know it's a good point, Gary <laugh>, I would tell you . So, but this is actually an interesting point. 'cause this is one of my concerns. I know you have been a big proponent of analytics, right? Yes . In helping to use the data to evaluate. And one of the concerns that I've always had is this, right? I've had clients who are outliers, and as a result of them being outliers have been looked at. Um, and sometimes it is really, they are just exceptional destination, you know, providers that people, they, they pinging the, you know, the, the data analytics, because, you know, people come to them from all over, they provide that greater care. But one of the concerns I've always had, and so I'd love your thought as to how this gets avoided, is if people know the government's relying on analytics, I am of a firm belief, there are criminals out there who are just engaging in just a low enough level of fraud that it's never gonna get noticed, and they can just be cruising horrible degrees of fraud, right? But since it will never pinging the government's analytics, and if they do it in a way that doesn't yield someone filing a complaint, I mean, you're just funneling money from the government to you. How do you like from, from someone who really knows how analytics actually can work? You know, how, how , how do you avoid that? Because that's who I would say is the smart criminal and all of the other criminals are stupid .
Speaker 4:Well, I , you know , here's how I would answer that . You can use analytics to identify , uh, potentially suspect conduct of large scale or small scale . The analytics isn't limited in finding only big million dollar issues, right? Okay . Um, the analytics can be tuned to if you want to even include a filter on the amount of money , um, to whatever number you choose. But the reason analytics might be , uh, one reason that it could be tuned to look for, let's say, larger cases and maybe not pick up on the lower dollar , um, uh, matters that could be flying under the radar is a matter of resources, right? Um, so when you have, you know, I would argue limited resources on the investigative and , and , um, and the tive front in terms of those investigations take a long time for the government , um, take a lot of resources for the government, both , um, not just O I G, but other agencies. They work in partnership with other agencies and , um, and prosecutors as well. So there's, there's some decision that has to be made by the government as to where they're gonna allocate their resources. And the unfortunate reality is, I don't advocate this, but you probably could fly under the radar if you kept your scheme to a low enough level of, of , uh, low enough dollar figure that maybe they wouldn't , uh, pick up on it, or maybe they just wouldn't pursue it because of a lack of resources. But, you know, the reality is , um, law enforcement isn't the only tool, and it maybe isn't the best tool , uh, to address healthcare related fraud or , or waste or abuse. You know, there's state agencies have , uh, Medicare, Medicaid , um, they have their own tools,
Speaker 3:Medicaid control fraud units,
Speaker 4:And yeah, they have their own tools, administrative tools to address , um, whether it's large scale or small scale issues related to inappropriate payments , uh, whether that be a revocation or payment suspension or , um, somewhat whatever other tools they have in the toolbox, an education letter. So it's not , um, it's not just the analytics that's gonna lead you in one direction in terms of scale. Mm-hmm . <affirmative> , it's the decision about resources and the tools that are available.
Speaker 3:And I think now's a good time for one of those disclaimers. You and I are not encouraging people to commit lots of low level fraud. Our actual formal advice would be don't commit fraud. Right?
Speaker 4:Don't commit fraud, don't commit , and the data will can show it if the be , you know,
Speaker 3:Well, and that's, yeah , that's what I always say is if they , if , if the government grabs the right data points, it, it creates these unquestionable unassailable cases, you know, every once in a while, I think, you know, when the, the , when the wrong metric is grabbed or the wrong metrics being looked at. Um, but that's why we had an adversarial process.
Speaker 4:So yeah , again , on the criminal civil , there's never , um, analytics produced spreadsheet of potential bad actors walk over to the US attorney's office and draft indictment. That's not how it works. You know? Yeah . Analytics leads can lead to action, it can lead to prioritizing the work , and it can lead to proactively identifying issues you maybe didn't know about through a whistleblower complaint, but it doesn't lead directly to, you know, a criminal indictment or a civil , uh, false claims guy case . Lots of legwork still has to be done.
Speaker 3:Those pesky investigations, yeah ,
Speaker 4:You have to verify that you're on the right track.
Speaker 3:Look, the , the one advice I would give to providers out there is this, pay attention to what's going on, what's happening elsewhere. Because one of the things that I think we see is something may be happening in one region that hasn't made it to where you are, you know, either a type of , uh, enforcement action or type of audit or investigation. And very candidly, you can both use that to help your clients get ahead of the game in the form of getting information organized, evaluating what their risk is, being honest if there is a potential issue. But very candidly, it can also help you evaluate if you have a situation that might warrant an overpayment, might warrant a, a self-disclosure. Because if you see, you know, in the northeast, the government's looking at one of, you know, a particular industry or a particular type of conduct, and you're like, I'm pretty sure we do that, that doesn't preclude you from still getting to your appropriate agencies and saying, we looked into this, we identified it, we've evaluated it, and we're, you know, reporting it as an overpayment, as a self-disclosure as appropriate. Um, and it , it is a great way to minimize risk and to minimize, again, the consequences, especially when it isn't something that was being done , uh, intentionally. So I, I think stay abreast of what's going on. I think it's one of the reasons that, you know, participation with the A H L A , uh, really does help because it helps you make sure that you have access to that information beyond just what's going on outside, you know, of , of , of your business or your office. Uh , Gary, I'll give you the last word.
Speaker 4:I'll just, I'll just add one thing. We were talking about analytics, and I know, again, everyone knows this, but sometimes it just needs to be said. The government analytics aren't just a tool for government. You can use analytics and do anything and everything likely that the government can do with your data that , uh, on your own and self-identify potential risks. Um, it is a way to be proactive , um, talk to your compliance professionals, talk to, talk to Mark about the risk once you've identified it and how to address it appropriately. Um, or your , you know, your favorite attorney, if it's not Mark . Um, but the data can be a tool for you in identifying risk within your organization that you can hopefully as that we have recommended, I think both of us , uh, already , um, the sooner the better and the more clearly you address it, and the better you document your actions, and then if, if appropriate, the more , uh, the sooner you report an issue for a , uh, an overpayment , um, collection or a self-disclosure , um, it's likely that the, the pain from that risk will be lessened as a result, even if it's only that you stopped it sooner and didn't allow it to accumulate into a bigger and bigger problem. And then the last thing I think you also said is just stay abreast of what's going on in the world. You know , there's, there's a lot changed , uh, during COVID and continues to change post covid and telehealth has been, it was the greatest, quickest experiment , uh, you know, in Medicare at least , um, that probably wouldn't have happened as quickly, no doubt wouldn't have happened as quickly if it weren't for the pandemic and the need to provide that level of care during the pandemic. Um, but those rules are continuously changing and, and technology, as you said , uh, may be getting ahead of the regulations. And so understand your risks if you are trying things in a new way to deliver , uh, even if you are full intent, is to deliver valuable service more efficiently and better care to your patient population. You still gotta be aware of whether you're getting ahead of the regulations or not, and understand the risks that that might , um, uh, result in, in terms of payment or overpayments.
Speaker 3:Look, it's a great point. You said it under , it's like our doctors understand your risk. If you have symptoms, be honest about it, get your routine checkups, and don't ignore it when you have a problem, right? Because you don't wanna hear it from your doctor. You don't wanna hear it from your lawyer either, which is, I wish you would've come to me six months ago. So that's the best advice. Stay on top of stuff. Uh, it gives lawyers a reason to check in with their clients. Uh, believe me, clients love it when you say, I'm just checking in to make sure you don't need me proactively. So, well, listen, Carrie , this has been wonderful.
Speaker 4:Uh , yeah, thanks Mark .
Speaker 3:I enjoyed doing this again and , uh, to everyone , uh, supporting the A H L A podcast. Thank you for that. Have a wonderful day.
Speaker 2:Thank you for listening. If you enjoyed this episode, be sure to subscribe to a H L A speaking of health law wherever you get your podcasts. To learn more about a H L A and the educational resources available to the health law community, visit American health law.org .