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Top Ten 2022: Pandemic-Related Enforcement and Oversight

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Based on AHLA’s annual Health Law Connections article, this special series brings together thought leaders from across the health law field to discuss the top ten issues of 2022. In the third episode, Tynan Kugler, Principal, PYA, speaks with Jody Rudman, Office Managing Partner, Husch Blackwell LLP, about enforcement efforts related to the relief, assistance, and monetary protections for U.S. businesses, health care systems, and providers under the CARES Act. They discuss best practices for hospitals and health systems as they prepare for potential government audits and tips and tricks to stay abreast of any changes to guidance and new regulations. Sponsored by PYA.

Watch the conversation here.

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Speaker 1:

A H L a is pleased to present the special series, highlighting the top 10 health law issues of 2022, where we bring together thought leaders from across the health law field to discuss the major trends and developments of the year support for a H a. And this series is provided by PPY, which helps clients find value in the complex challenges related to mergers and acquisitions, clinical integrations, regulatory compliance, business value, fair market value assessments, and tax and assurance for more information, visit pya, pc.com.

Speaker 2:

Well, Jody, it's so nice to be able to talk today about, um, you are the, the, the, the number three in the, in the top 10, um, article are our items this year, and yours really is related to a pandemic related enforcement and oversight. So we're gonna, we're gonna talk a little bit about that today, your article and couple of questions and thoughts that have come to my mind as I've read through it. So by way of introduction, I'm a partner with a principal with, to pya I'm in our Atlanta office. And I've, I spend a lot of my time in the compensation, valuation service, valuation compliance, regulatory space, and, um, I'm interested and curious to hear what your thoughts are about what, what 2022, and the future will look like. So I'll, I'll turn it over to, to you for introductions as well.

Speaker 3:

Well, thank you. Good morning. Uh, it's great to be here and, um, thanks for taking the time to, to read the, the top 10 article and, and, um, and meet with me today. I, so I, um, am a law partner at hush Blackwell. I am in our Austin in office, although, um, my practice isn't limited to Austin or, or even to the state of Texas for that matter. Uh, I've been in the healthcare space for a long time, um, a former federal prosecutor in the Northern district of Texas, uh, and that has, um, parlayed itself into, um, just a, a number of matters, civil and criminal, um, that involve government investigations. And, um, sometimes the eruption of those into false claims act lawsuits or criminal indictments or both, uh, and largely, but not as exclusively in the healthcare space. So, um, it's good to be here to talk about this, uh, new<laugh> issue that we are on the precipice of as we've all been dealing with the rather unprecedented, um, pandemic and it's aftermath over the last couple of years. Mm-hmm<affirmative>

Speaker 2:

Well, I, I think you, you kicked it off, uh, nicely in, in your article where you, you talked about sort of the, the number of relief assistance and, and, and monetary protections that, that is healthcare systems, hospitals, um, have had available to them via, um, things like the cares act and the enactment of the cares act. And, um, I think one of the things that, that was interesting when you talk about, you know, those recipients are really bearing, you know, the responsibility for spending those funds within certain program guidelines.<affirmative> but one of the things that I, I think you touched on that I, I know we've experienced with several of our clients is it's, it's just diff really difficult to keep up with all of those guidelines and they're ever evolving, they're changing. And I, I really liked the word you use of, of sort of uneven guidance. So it's kind of like the shifting sand, your, your, your, um, you know, trying to figure out. And one of the other things I really liked is, is you said that it's a, it's a recipe for that. It, that it's a recipe, right. For years of enforcement efforts. And as I was sort of looking through the, the OIG work plan, um, you know, specific to sort of COVID and pandemic real related opportunities, one of the things that came out was that it looks like there are two audits that they've identified as part of the 20, 22 work plan. And I was, I was really curious, you know, they say, they're, they're, they're gonna kick off potentially in 2022, but, but as you said, you just don't know what's gonna occur. And I was, I was curious as to your thoughts on when we think we might be seeing some of that activity, um, and we'll talk a little bit about too, and some other questions about how organizations can best prepare, but would, would love your crystal ball, um, thoughts as we, as we go into this year.

Speaker 3:

Yeah, yeah. Wish I had one. Um, so let me back up just a tiny bit, um, because there are so many facets to the cares act relief programs, and of course, a lot of the really early efforts, um, in enforcement activity are, are what you might call the lower hanging fruit. And that's just the, you know, straight up abject fraud, you know, or alleged fraud on the paycheck protection program in particular, uh, but not exclusively. And, and we're already seeing a number of investigations and, you know, hotline reports, and even now prosecutions and guilty pleas. And, and so on in the, in the P P P loan fraud arena, uh, in addition to other, you know, pandemic related fraud, the, the longer tail. And I think the more complicated, um, timeline, which is, I think what you're getting at is the provider relief fund and the, and the relief, um, packages that are very specific to the healthcare industry, uh, that came in the T tranches of provider relief fund, um, monies. And that has been, uh, a difficult, you know, rollout. Um, there was, as you, as you point out a lot of shifting, um, guidance on entitlement to those funds and on, on the spending of those funds. And now of course, the OIG has indicated, uh, the, that it intends to, to audit, um, the re the receipt, and then the use of those funds here in its, in its 2022 work plan, crystal ball. Um, gosh, I would imagine we're going to start seeing, um, real audit related work probably in Q2 and the second half here of 2022 part of that is gonna depend onn and, um, degree to which this particular variant or anything that follows impacts the ability of people to be at work and, um, you know, get their jobs done as opposed to needing to quarantine or God forbid, you know, being incredibly sick and that impacting, you know, the number of people who are available to do this work, but putting that aside, I, I think it's going to be very important to the federal government to begin auditing and begin policing and begin looking into the, in the expenditure of those funds. And so all things being equal, I would imagine second half of 20, 22, we're gonna start seeing that activity happening, I will say as a, just a follow on comment before I turn the floor back over to you that I think those audits are gonna be kind of lengthy. So although they may start, um, you know, in, in the second half of 2022, I'm not sure they'll finish that quickly. I, this is gonna be very paperwork intensive and, um, you know, calculator heavy and a lot of sharpening of pencils and, and meetings and rooms. And so I'm, I'm not sure that it's gonna be a quick process, even, even if it begins quick. Like,

Speaker 2:

Yeah. And I think one of the things that, that you and I have have also, um, talked about is, is the fact that there're gonna be some unfortunate souls that are gonna be the, um, you know, number ones that get selected for these and, you know, kind of like, like other regulatory in compliance audits. We're, we're probably gonna gonna learn a lot from those that have been the, uh, random, or, you know, like I said, sort of unfortunate ones that are, are not necessarily volunteering to, to, to do this. Um, but, but we'll be important to watch just to see, you know, what we can learn and, and what some of the things are that other organizations can take away. Cuz as you said, I don't, I don't think this is gonna be a, a one and done, this is probably gonna be a continuing in, in, into the, the, the future, you know, number of years. So, um,

Speaker 3:

You know, just to, just to say something about your point, which is so well taken, I wonder the degree to which this is gonna be public record, uh, you know, available to those of us watching within the industry. Um, at the end of the day, if there's some kind of settlement with the federal government because funds were received in a appropriately or spent inappropriately, you know, what will be the nature of confidentiality that will cloak that process? I'm not sure, but you're so right. Um, that those who are unfortunate enough to be the, the initial Guinea pigs of these audits, uh, will be important for all of us to have our eyes on to the extent we can. Yeah.

Speaker 2:

So, you know, one of the things that I, I think you also talked about was, um, adhering to guidance and, and, and guidelines and, you know, obviously if it's constantly changing or if it has changed, you know, that, that makes it all the more difficult. And especially as, as you also said, I think, you know, while we, while we all had hoped that we would sort of plateau with, with where we are with the pandemic, um, it seems like it's, we're taking another dip, which means that that individuals that are in the compliance and regulatory space and hospitals and health system settings are really having to juggle a number of priorities that they likely had not planned on going into, um, this year. And so as, as you, you think about prioritization and preparing for an audit like this, or thinking through what, what the guidelines and guidance have been, how, how do you sort of guide and what would you say are sort of the, the number one things that, that would be best practice or that somebody should focus on knowing that we've sort of got this, this eye on us now, but knowing we've also got some, you know, limited resources. So what, what are kind of the, the, the low hanging fruit from the, from the audit preparation side, if, if you will.

Speaker 3:

Yeah. Uh that's um, boy, that's a complicated question because of course, you know, patient care and all of the issues that surround patient care, you know, obviously must come first and, and the safety of, of everyone who's working in these health systems and, and provider organ is, is paramount. But, um, I think it is really critical to the extent resources allow to, to be prepared upfront, um, meaning you've got a dedicated person or small team that is keeping up with all of the paperwork that surrounds the receipt and expenditure of provider relief funds and keeping up with any guidance or any, you know, sort of new articles or new pronouncements by the government. And, and it, you know, if you liken it to just keeping a notebook, you know, printing it off, if you see it and put it in the notebook, um, because the hardest thing to do, um, in an audit situation or an enforcement situation is to try to go back and reinvent the wheel and try to remember what you did because of what you were thinking because of what was available to you on a particular day. And the problem with viewing things in the rear view mirror is that we often take today's knowledge and we try to impute it to actions that we took a year ago or two years ago. And that doesn't often inure to the, to the benefit of the person whose actions are under scrutiny. And so contemporaneous documentation that is coupled with contemporaneous actions is really helpful when you're viewing things, you know, in a rear view mirror situation. So I would, if, if it's not already happening, I would make sure that I have in my organization, you know, a timeline, this is what we did, and this is why we did it. And this is the information that we had when we made the decision to do it. And then I would task a person or persons to just keep up with this is how things changed or are changing. And this is what we're doing about it. So that if the time comes, we're not reinventing the wheel retrospectively, we have all of the contemporaneous stuff that existed when we did what we did. Um, and that includes maybe, you know, having one person who just keeps up with, for example, the current OIG work plan, log on, get on the website every week or two weeks. See if there's anything new out there, you know, get some, some Google alerts or some other research alerts that help you keep up with, is there public information about who's being audited and what's happening, uh, or what the government is interested in in these audits. Um, and then, you know, keep a team in place that maybe meets monthly or, or weekly or whatever is appropriate to sort of make sure that we know how the money is being spent or that, you know, we have this reserve fund and this is where it is, and this is what's happening with it. So that again, if, and when these questions get asked in an audit situation, it's right here in front of us, rather than scrambling, I would much rather have any organization be prepared, unnecessarily, be unprepared and, and scrambling.

Speaker 2:

Yeah. And I, I think one of the things I, I really like about what you said was it, it's not just the documentation of, of what you did. It was, it's the, kind of the, why you did it based on the guidance at that time, because just given how fast a lot of this has moved, you know, a month, a week, two weeks, you might not really, you know, and, and even into the future to your point, remember sort of what the rationale was for doing what you did then. And that I think is really, you know, sort of maybe takes some practice in terms of, of working it into your, into that routine from an audit perspective, but the why you did it and what the rationale at the time for doing it was, I, I think may you know, me not being the attorney, but somebody with your background and advising a aha hospital or a physician practice or, or, um, you know, the light going forward is, would say that's probably a, a, a, a good practice obviously with, you know, kind of within reason. But, um, yeah, I, I think it, it is, it, it will be interesting to, to, to see, and I I'm sure, hopefully I've seen some, some of organizations who've sort of been just via chat rooms, putting things like best practices out there. Um, and, and kind of going from there. So sort of using each others as, as peers and then reaching out obviously to their trusted advisors when they, when they kind of get stuck and, and need some guidance, um, you kind of on this, but sort of the, the tips and tricks for, for keeping up with changing guidelines and new information that comes out. Um, I know you mentioned sort of having someone dedicated and, and I think, you know, some of those alerts and publications from the OIG are, are helpful, but are there, are there any other things that you can think of, of that, that maybe you've used in your practice or worked with clients on that, that have really kind of helped cut through all of the, the fast pace and, and, or, or ways that, that you would advise somebody to proceed? If, cause you know, you've kind of got a full spectrum, you've got probably some facilities and organizations that aren't, aren't necessarily able to have sort of that dedicated person to larger organizations that, that maybe are able to do that more effectively. So, and any other sort of tips and tricks that you can think of?

Speaker 3:

Um, well, uh, I love the idea of the, kind of the discussion group. Um, you know, if, if there isn't some somebody who's available within the organization, um, you know, or there are maybe budget constraints, um, we, lawyers can get expensive. Um, you know, experts such as yourself can get expensive. I do love the idea of kind of industry discussions. Um, you know, there may be a, um, a monthly lunch where industry insiders sort of get together and just, you know, just share information or ideas or, um, you know, news articles that this one might have seen that this one might of seen. Um, I think that's, I think that's smart, you know, you wanna be careful that, that, you know, no one is telling each other what to do or providing, you know, inappropriate or unnecessary guidance to one another. You, you know, there are lines, but, um, but the me sharing of, of information and sort of help, I think be, can be a great free, um, and, and really helpful way to kind of pick one another's brains and make sure that, that everybody is staying on top of again, evolving or potentially evolving information. I, the other thing is, you know, we who, who are in the legal industry or you, uh, you know, the experts were pretty good at, um, if we come across something that looks like, eh, we better share this. We're pretty good at sending out, you know, the article or, or a, a link to something that we saw online, because it's important to us that, that our clients stay abreast of, of, of new information that may be coming out there. So, um, to the extent that a, that an organization has, you know, lawyers that are, you know, they're trusted advisors, I think I, I would ask if the lawyers aren't already doing it just, Hey, you know, if you come across something that you think might be helpful to us, be sure you, you let us know. And, um, uh, certainly the lawyers that I work with and, and am aware of are really good about doing that. And I'm, I'm sure would continue to be. So I guess I would add that to the list, to the extent that an organization doesn't already have somebody who's, who's proactively out there seeking and informing.

Speaker 2:

Yeah. Well, and I, I, I mean, I know for, for me, you know, some of the, the, the, you know, it's not really a Lister, but it's more the, the publications that the OIG and the DOJ that they, they push out daily. I mean, I know it's easy to kind of miss them because, you know, when you get lots of emails and, um, you know, but you find your trusted source, you know, you find your trusted, you know, a H L a summary of the day, you know, you look at your OIG, you know, the work plan. I think the OIG work plan is, has changed over the years, how they've, how they've published those updates. And I think you, and I just recently talked about how, how that just seems to you blank and something else is on there. And so you really do have to kind of, kind of keep up with that, but, um, what do you want, I guess one sort of final thought and question is, is, is what about sort of preparation or preparatory audits that somebody should do? You know, I know sometimes we see that on, um, you know, like with three 40 B or with some other, other type of, of audits that the government that we find is going to be doing. So it's sort of more like your own proactive audit, um, to, to see is, I mean, is there any value, even though this is so new, it's, it's, it's a little bit of a, an interesting concept, but you know, maybe one way to test the ability of your, of your record keeping is, you know, if you were to have to kind of go back and, and, and do a, a pretend audit, you know, do you feel like you'd be prepared? Um, again, limited to time and limited resources may, may not, may not come into play, but, but that, that might also be something that that organizations might, might think about.

Speaker 3:

Yeah. Yeah. That's an excellent point. I, I wanna circle back to something you said a few minutes ago about, you know, we can all get busy and it can be just sort of challenging, even overwhelming to, to keep up with those emails that come in and so on. And I, I remember, um, when I was a very young associate, one of the partners in my firm was giving this address to, to those of us about, you know, tips and tricks, you know, for how to develop our law practice and how to, how to be good lawyers. And, and I remember to this day that she said, read, read, read, read some more, keep reading. And I, I scratched my head even at that time and thought, how does a person have time? How do you have time? I mean, how can you keep up with all of this? But, um, you, you not only need to find in time to do that. It, it, it can be really critical, especially in this scenario to make sure that you do dedicate five, 10 minutes a day to, even if you're just scrolling the headlines, you know, figure out who on Twitter is gonna inform you best on these issues, or which of those many, many emails or podcasts, or, you know, that, that you can spend five, 10 minutes a day paying attention to, I, I just think that's so important, um, to your point about the practice audits, uh, what a great idea. Um, yeah, I, I'm not, you know, I'm, I'm not sure in the cause benefit analysis, you, it's so challenging to know who is gonna really be subject to these audits and therefore who is undertaking that task perhaps unnecessarily. But I, I think it, I think it's tremendous. Um, yeah,

Speaker 2:

Well, and you know, what's, so what's been interesting for, for me, is sort of through this process is just to sort of watch how folks, you know, from various different parts, especially in, in our organization, probably on the legal side too, where, you know, you're really having to pull specialists from various different healthcare, whether it's, we mentioned earlier finance, legal, compliance operation, it's, it's a whole team of people that have had to come together. So it, it, it really has been, I think, col opportunities for collaboration. So in, in an era where in some ways we're all less connected, we're all sort of more connected and collaborative because we've gotta figure all this out together. And it, it sort of takes the perspectives of some different people, which, which I think is somewhat unusual from, from maybe some of the other regulatory, um, maybe not, but it, it, it just, for us, it feels like it's, it's really had to be a collaborative pulling, pulling of the resources to, to really cuz nobody can read at all and be the expert in all of it as quickly. Um, so it's sort of that divide and conquer, which I, I, I think is, has probably helped a lot of us get through some of it.

Speaker 3:

Yeah. You know, you, it brings up an interesting point, which I, I, I can't offer legal advice on it. I won't, but, um, you know, the, kind of the, what happens if you identify what you consider to be perhaps a, um, you know, a misuse of funds or a lack of entitlement to the funds to begin with there, that that's got some thorny, um, issues involved there, which are, would require I think the seeking of, of skilled legal counsel. Um, but yeah. Interesting. Yeah.

Speaker 2:

Well, it it's, it's clearly, you know, I think in, in your column, you, you touched on, on a lot of different things at, at, at a, at a high level, but, but at a, with enough granularity that, that, you know, we're all starting to ask questions and just as you and I have been talking, I think we've probably uncovered a couple more things that maybe in preparing for this, we, we hadn't even thought about. So I, I think just being able to continue these conversations and, and use each other as, as, uh, um, you know, colleagues to, to share information and read will, will just prove to be invaluable in the future. So I just wanna thank you for spending time with me and for, um, for sharing your insights. And is there anything else that, that I may have missed that, that you think would be helpful? Or should we save that for, for another day when, when we six months from now, when we see if any of this has come to fruition,

Speaker 3:

I don't think you've missed anything. It's been a real pleasure and I'm, I'm grateful to HLA for letting us get together this morning and, and to you for these terrific questions. Thank you.

Speaker 2:

Thank you. It's it's, it's been great. And certainly appreciate it.

Speaker 1:

Thank you for listening. If you enjoy this episode, be sure to subscribe to a H L a speaking of health law, wherever you get your podcasts to learn more about ALA and the educational resources available to the health law community, visit American health law.org.