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AHLA's Speaking of Health Law
Operation Brace Yourself, Part One: Advising DME Clients
Operation Brace Yourself, a massive 2019 Department of Justice operation involving the durable medical equipment (DME) industry, was one of the largest health fraud enforcement actions in history and had major legal and compliance repercussions for DME companies. In this two-part series, Stephen Lee, Solo Practitioner, Law Office of Stephen Chahn Lee, recounts the true story of two DME owners who unwittingly found themselves in the crosshairs of this massive government enforcement action.
In part one, Stephen speaks with Michael Silverman, Lawyer, Silverman Bain LLP, and Noel Neil, Chief Compliance Officer, ACU-Serve Corp, who both advised the owners and recommended stopping operations. Michael and Noel discuss how they advised the owners amid increased government scrutiny of the DME industry and also provide practical tips and guidance on how to communicate complex legal issues to clients.
Watch this episode: https://www.youtube.com/watch?v=TPgVnbVQhpc
Listen to part two: https://ahlapodcasts.buzzsprout.com/221709/episodes/17308943-operation-brace-yourself-part-two-defending-dme-clients
Watch part two: https://www.youtube.com/watch?v=eEm85ExPXVQ
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SPEAKER_02:My name is Stephen Lee, and I'm an attorney in Chicago who used to be a federal prosecutor and used to be the senior counsel to the Chicago U.S. Attorney's Office's Healthcare Fraud Unit. And I'm happy to be here for part one of a two-part podcast talking about Operation Brace Yourself and a real-life example of how lawyers can help their clients through some very difficult circumstances. I have with me today two other people who were involved in this real-life example, Noelle Neal and Michael Silverman. Can you two introduce yourselves? Start with Noel.
SPEAKER_03:Oh, hi. My name is Noel O'Neill, the chief compliance officer at AccuServe. AccuServe is one of the largest DME billing companies in the country. So we have a wide cross-section of clients doing pretty much everything that is involved in DME. So happy to be here, Stephen. Michael, turn it over to you, sir.
SPEAKER_01:Hey, everybody. Pleasure to meet you. Attorney Michael Silverman here. I am an attorney and founding partner with the law firm of Silverman Bain that is located in South Florida, specializing in representing healthcare business owners and medical professionals born and raised in the DME industry myself, which is what primarily we'll be talking about from an Operation Brace Yourself perspective. So for better or for worse, a large part of my practice is representing and working with DME providers given that I'm born and raised in the space and and happy to be here and to share some very interesting information with our folks that are attending.
SPEAKER_02:All right, great. So let's go back to Operation Brace Yourself, which was a Department of Justice operation that occurred in the spring of 2019 and then involved several high-profile arrests relating to durable medical equipment, fraud, kickbacks, and the like. So Most of you probably listening to this have probably heard about this, but let's go back and just take a look back at that. Michael, can you just summarize Operation Brace Yourself for our audience?
SPEAKER_01:Happy to do so. So Operation Brace Yourself was one of the largest takedowns in Department of Justice enforcement actions, not only in the durable medical equipment industry, but in the history of the Department of Justice and healthcare fraud actions. It was announced on April 9th, 2019. I've got some interesting facts and figures that I don't want to get wrong here. On April 9th, 2019, there was 80 search warrants executed in 17 federal districts. There were 24 individual individuals charged with over 1.2 billion in losses attributed to those individuals. In addition to the charges that were announced and those losses, actions were taken against 130 different BME companies nationwide who had submitted 1.7 billion in claims and had been paid over$700 million by the federal government. And this was a very, very interesting takedown in the DME space, especially from my perspective, somebody who watched everything begin to bubble and fizzle around it. This takedown not only involved durable medical equipment providers themselves, but also marketing companies and health care professionals that were also charged. And this was such a big takedown and enforcement action that over five years later to this day, we're still dealing with ongoing indictments and arrests that are stemming out from this massive operation. Noel, tell me, tell us a little bit from your perspective what you were seeing going on in the billing space.
SPEAKER_03:Sure, yeah. I mean, it was a big deal and it just really blossomed. I think anyone and everyone who watched late night TV back then prior to 2019 would have seen one of those ads on the screen, right? Where, do you have back pain? Call this number. right um i think we're all plagued with that but really in summary for for those of us who well if you've never heard of operation brace yourself just kind of very high level what it really is is um marketers would have these ads where people will pretty much opt in or call in to say hey i have back pain and they will speak to someone may or may not be in the US. It could be some remote offshore call center. They'll ask them some probing questions. What's your pain level, et cetera. And then they will generate this beautiful progress note that sort of mirrors the requirements from the LCD. And the LCD is the local coverage determination. That is the document that Medicare has established to determine coverage for these braces. And then the marketer will take that information, get doctors, in some cases, would review it and allegedly in some cases the doctor actually never spoke with the patient but just took that progress note and signed off and marketers will take those progress notes and then market them to DME companies and they'll say well we'll give you this sell you these order for a certain amount and allegedly the DMEs will pay for that furnish the braces and then they bill it to Medicare. And I'm sure we'll dissect that surgically as we get through this discussion, but that's just a very high level of the process. And obviously some people build it themselves and others have reached out to billing companies to submit the bill on their behalf. But we've taken a very hard stance on this because of the red flags that were involved and we'll talk about this as we get into the specifics. That's a very high level for Brace Yourself. It seemed like it was really simple. It's a couple of codes that were submitted to Medicare, not a lot of modifiers, at least at first. So a lot of providers actually attempted to build those by themselves. And there are some others in the industry that were a part of that clique, if you may, who helped and facilitated that building. So back over to you, Stephen.
SPEAKER_02:Yeah, so look, this was a huge operation that had a lot of ripple effects, and we're going to be talking about those ripple effects and the rest of part one and in part two. But I think basically I want to give a little thought is from my perspective. And so I was a federal prosecutor. I did not work as a federal prosecutor in any of the Operation Brace Yourself cases. I have been involved in some of the related cases as a defense lawyer. But I think what's really interesting about Operation Bridge itself is I actually think that there's some really missed opportunities here. And I actually think that this case all could have unfolded very differently if the government had been actually more on top of things. They talk about this case as a billion dollar case. It should not have ever gotten to be that big. There are all these red flags. And the government saw a lot of these red flags at the time. One of the big things I see when I look back at the data is that there was this huge shift in the Medicare billing. And you can even see this in the publicly available data. Five years before, you know, five years earlier, there was like no one in the country who ordered large amounts of prosthetics and orthotics that were billed to Medicare. Just no one. No one was billing large amounts or no doctor was authorizing large amounts. And then you started to see this shift where suddenly, there were these doctors and medical professionals who were suddenly ordering large amounts of prosthetics or orthotics, including people who didn't even specialize in a field that even made any sense to do that. I think I saw like one OBGYN at least. And so there were these red flags that this was happening around the country. And, you know, I really think this is the kind of thing that, you know, be honest better regulation could have actually clamped down on because all these red flags the government talks about now they were present before doctors ordering huge amounts doctors who weren't in the right specialty ordering large amounts and also doctors authorizing things for patients whom they didn't really have much of any contact with so all these things were there in the data and i really think this is something that could have been dealt with um and so And so, but it is a widespread problem and involves improper billing, there's improper marketing, and clearly like doctors ordering things that obviously shouldn't have happened. But the big question behind all this is like, how did this come about and why? We're not gonna get into all that here, okay? Because what we really wanna focus on is the after effects of operation for yourself.
SPEAKER_03:And Steven, just before you move on, I wanted to throw this in there too, because really just to preface by saying that a lot of this happened prior to the public health emergency when the rules for telehealth, which was purportedly the vehicle that allowed these schemes, strictly required that patients could not be evaluated in their home, right? Which is where allegedly these encounters had occurred. Patients were required to be at either approved sites other than home. So that utilization where supposedly the telehealth could be used as a vehicle to facilitate these order was just one of those evident red flags, right, that this was a problem. But you're right. I think the data really speaks for itself. And the government was more reactive than they could have been proactive. As you said, the data show the spike and show the pattern. So you're spot on with your analysis.
SPEAKER_02:And you know, one more thing that happened, like Michael talked about some of the actions the government took. They also did make a lot of regulatory changes going forward. So now there was, to the extent there was ambiguity in some of the regulations before 2019, a lot of that is now more clear. There are things now that cannot be ordered under certain circumstances that people thought were okay beforehand. Okay. Anyway, but the big thing we want to talk about today is how companies basically in the wake of Operation Brace Yourself, clearly a lot of companies in the DMV space were trying to figure out how to navigate this, how to go forward and try to basically comply with, especially given everything they learned as a result of all this. So Noelle, Michael, can you talk about this a little bit? What were you seeing in terms of how companies were trying to deal with the aftermath of Operation Brace Yourself and the changes they made in order to comply? Noelle, why don't you start?
SPEAKER_03:Sure. Yeah. So, I mean, I remember clearly the news alerts and emails and everybody really becoming frantic and asking and reaching out. And I think really people Became aware of things that others have always been saying that was wrong right are people that had concerns about certain aspect of it, but it became apparent now because now the government is investigating it right, so we see providers. Some. evidently continue to do what they're doing right because some of them felt that they would not be caught and and that's why there's some residual um and i'll also probably say this though stephen i think they're folks who got caught up in operation brace yourself not that they had any ill intent but i think it's just that they were ill-advised or that they lack the education necessary from a billing perspective, right? So I'm not gonna say that everybody involved or everybody that was implicated really truly had really ill intent. And I think that's evident by Once folks were made aware that it was wrong, some folks have sought guidance and counsel to make sure that their understanding of what they were told previously prior to the indictments and the news release was accurate. So we saw a lot of folks that reached out to us at AccuServe and asked questions, asked some specific billing questions. And we were able to provide some poignant guidance and based on the guidance that was available at the time as to why there were concerns in certain areas, and folks have taken on those guidance. And I'm sure Michael has seen it from a different perspective from the termination letters and stuff like that. So, Michael, won't you just speak about your specific experience and what you saw?
SPEAKER_01:To understand Operation Brace Yourself, you really have to take a step back and get an idea of the DME industry itself. These are unlicensed workers. individuals who can become owners of these businesses who don't have to employ or engage any licensed healthcare professionals and can essentially hit buttons to electronically bill and submit claims. So the ability to bill Medicare for these type of equipment, the barrier to entry to begin with is pretty low. And what has happened over the years, as with a lot of the different retail industries, it's become very difficult for a supplier of orthotics or diabetic testing supplies in a retail walk-in setting to make ends meet between the cuts in reimbursement and the cost of goods and the increasing cost of everything. So what happened is folks turned to online lead generation, mail order supplies, and marketers did what they did best. They got interested individuals who wanted to use supplies, but a pipeline developed where you had all these folks who wanted supplies, but they couldn't get prescriptions from the providers to write orders for those supplies to fulfill them. And so in about 2016, 2017, in my practice, a lot of different DME companies started presenting me with prospective marketing agreements, relationships with either telehealth, and I say telehealth in air quotes because a lot of this is not telehealth. Telehealth is a good thing in the wave of now and the future when done correctly. This was telefraud. This was agreements between DME companies and either marketers or tech platforms or healthcare providers directly where for every order that was received back in exchange for this relationship, this platform or provider or marketing company was paid X amount hours per order it was a blatant kickback situation fraud from my perspective. This started building up in 17, 2018. The red flags and warning signs were going off everywhere. And from a data analytics perspective, the government could have hopped on this much sooner and nipped it in the bud so that so many lives weren't affected and ruined over, again, a lot of this is ignorance and not intent to break the law, but the law is very clear and that's oftentimes what it was. And so Operation Brace Yourself occurred on April 9th, 2019. You know, anyone who doesn't live under a rock, especially in the industry, had heard of it. And so what I saw after Operation Brace Yourself is folks who weren't completely scared that knew what they were doing was wrong. I saw a lot of lipstick going on the pig insofar as a lot of these workers, Agreements kept coming to my desk wherein it wasn't X dollars per order that was returned to the DMV supplier or X dollars per order that was submitted Requested to be seen by the telehealth provider. They were paying what they called platform technology fees where it was X dollars or access or in tranches depending on the amount of individuals that were seen by the telehealth company or telehealth provider and so that's what I began to see in the summer of 2019 and we'll go into kind of our our real life example here um and a little bit of kind of what those agreements began to look like and see but from a But he dove deep down into how these agreements were modifying and changing, especially as Noel talked about the local coverage determinations and requirements. At the end of the day, medical necessity was not being met. The patient visits were not being conducted appropriately. And because Medicare was not paying for these physicians or telehealth prescribers to write the orders, at the end of the day, it was monies coming from DME providers and was ultimately a kickback. So that's kind of the natural evolution that I saw and still continues on to this day, given what we saw with the COVID and the waivers with the telehealth visits.
SPEAKER_02:And look, I want to step in and say, one of the big things that really is important about these cases and about how this all unfolds in individual situations is really kind of going to what Noel and Mike were talking about. What does the individual person actually know at the time, right? Because you can make mistakes you can misunderstand things and it's not a crime, okay? It's not a crime if you make a mistake or get things wrong. It is a crime if you act what's called willfully under the law, meaning that you acted with knowledge that your conduct was illegal. That's the key thing in a criminal prosecution for healthcare fraud or anti-kickback statute violations. And that's one of the big things that I deal with as a defense lawyer, because I do think People make mistakes. People get things wrong all the time. It's not a crime. And so that's the big thing. So yeah, so look, there are people who maybe arguably could have known, should have known better. That's not a crime. It has to be the people who actually knew. And so that's one of the big things that happened in the Brace Yourself cases and how cases unfold were really that issue is I think the big issue in how all these criminal cases unfold. And so- That's a larger issue. And that actually becomes a big part of the example we're going to get to. So let's talk about that. So in the wake of Operation Brace Yourself, lots of changes in the DME industry. And we're going to talk about a real life example involving real companies run by real people who listened to real people who they shouldn't listen to. And they know that now in hindsight. You know, this case, actually, everything we say is actually in the public record. And actually, but, you know, but just for purposes of this discussion, we're going to basically just anonymize everyone's name. But everything here is in the public record. And actually, as you're going to understand, actually, privileges have been waived, which allows, makes it possible for us to talk about this case and actually use it because we think it is actually hopefully educational for everyone out there. So Basically, this case involves companies, DMV companies that were started and run by these two business owners who I'm going to refer to as owner one and owner two. To be honest, kind of going to what Mike was saying earlier, they did not know much about the DME business beforehand. They talked to several people. They had some experience with healthcare. They heard about this opportunity and they talked to people who basically thought this was a good opportunity to get in and do things right and help people. And they ended up working with a specific biller who came very highly recommended and who had some very impressive credentials. And that biller, end up being their main advisor on the DME billing, and that biller ended up running a lot of their operations, including recommending a marketer. And that marketer, who was again, highly recommended by this biller, that marketer ended up doing a lot of the same things that were problematic in the Brace Yourself cases, including heavily relying on an overseas call center And basically, you know, one way or another, somehow basically cold calling patients and basically, you know, even sometimes possibly even harassing patients into basically saying they needed braces when they didn't. And so, and a lot of that stuff was going on. And Biller was also doing things on top of that, that were problematic while telling owner one and owner two that everything was okay. For example, the biller handled customer complaints and refunds, and the biller told the owners that the refund rate was very low and was below industry average when it wasn't. So, and again, all this goes to, again, so again, the key thing in all these cases is kind of knowledge and willfulness. And so basically, So a lot of this goes to what people actually knew at the time. And in both cases, in terms of what the market was doing, in terms of what the biller was doing, a lot of that was going on behind the scenes and the owners, unfortunately, didn't even know it. Okay. So the owners run their companies for about a year, trusting their biller. And then, fortunately, they talked to Noel. They came to Noel and Noel raised a lot of concerns about what he was hearing them talk about their businesses. So Noel, and that's part of what we want to talk about here, kind of how Noel and Michael end up helping these two owners get out of the situation. Noelle, can you talk about how about your interaction with the owners?
SPEAKER_03:Yes. I mean, I remember the day clearly they walked into our office in Florida and they had some issues with a few claims not being paid and they wanted to get an opinion as to how to get those particular claims paid. So as I typically do, I said, tell me a little bit about your operation. Tell me about what's going on. And they began to give me the facts very confidently, I must say, because they're well And they basically started explaining to me what they're doing. And I said, well, you can't do that. And they're like, what do you mean I can't do that? And I started to get into the specifics of why certain billing would not be permitted. And even if the claims are paid because edits were not built at the time to prevent those claims from being paid, it would not be appropriate because of the specific regulations that had already been published. Somewhat ambiguous, but a good tactician, a good biller should at least have certain basic understanding what should or should not be appropriate. So we had that conversation. We kind of went through the entire billing operation and I point to specific areas that I believe are compliance concerns, right? And I pointed out, even if you do get paid, that doesn't mean that you're entitled to the payment because Medicare is an honor system. They rely on you to assert certain things when you build certain modifiers and certain codes. So if all the facts are not aligned, then you are essentially putting yourself at risk for recoupments and even worse, civil or false claims violations or criminal violations. And the provider was really good. They were well informed by their consultant, their biller. If I didn't know what I did, I would have been convinced by them how confident the owners were. But I made them this one bit. I said, well, listen, I'm pretty confident what I'm telling you is correct. I understand that you've been given this information and I understand why you're persuaded because it makes logical sense. I'll do you one solid. I'll refer you over to Michael Silverman. And if he gives you a blessing, then absolutely come back to me and we can have a discussion for me to help you with your billing. But that is the only condition that you go to Michael, you lay out the exact same set of facts that you shared with me that I told you to be incorrect. And if Michael says, go ahead, then come right back over to my office and we can start talking about a billing agreement. Obviously, I knew that would never happen because I knew Michael very well and we see things eye to eye from a compliance. But in this instance, even though he wasn't a client, Stephen, Michael and I really take pride in trying to advise the industry, right? And it's not about just get signing him on a client, but he is someone who evidently from my initial conversation didn't fully understand the gravity of what was going on, right? So I felt pressed and obligated as sort of someone who takes compliance very seriously for me to give him that advice. I didn't even charge him because I didn't have a formal agreement, but I sent him over to Michael and knowing the great tactician Michael is, I had no doubt that the answer that he would have gotten. So I'll probably turn it over to you, Michael, to probably get more into that detail of specifically what you did.
SPEAKER_01:Thank you for your kind words, Noel. And thank you for sending these folks over to me, because otherwise we may have not had the conversation that we're having today about the good outcome that ultimately was founded after the terrible stuff that these good folks went through. So owner one and owner two came to me through Noel's advice, and they became a client of mine through their DME company. And this was in the wake of Operation Brace Yourself, where I had folks left and right coming to me with inappropriate appropriate relationships going on, folks that were getting indicted left and right, their PTANs revoked, tons of monies being owed back. So of course, and given my background of being raised in the industry, looked at them with a cocked eye when they came to me telling me they were doing telemedicine, right? Especially coming from Noel, who was like, hey, told these guys what they're doing, probably shouldn't be doing it, and want you to really show them the ins and outs of why. And although these two individual owners of the business did not come in with a background, a legal understanding of the DMV space. They certainly were two very, very intelligent individuals who did a lot of internal research and worked with their billing company and did investigation to become intelligible in the space. And really, they pushed back against Nolan. They pushed back against me real hard. And it took about three to four weeks after my initial meeting with these two individuals for me to really hit home with what I was saying, for them to take a step back, although they were big believers in themselves, and then for them to kind of wave the white flag and to acquiesce in what I was saying here. The first problem, you know, out to get with these folks and with many different folks that present to me is that they're taking compliance advice from somebody who has skin in the game. They're billing, right? Everybody and their aunt and uncle these days in the DME space especially, calling themselves compliance officers, experts in this space. A billing company that has skin in the game insofar as getting a percentage of the reimbursement of the DME provider that they're collecting, they want them to collect as much as possible. So to get a referral to a marketing provider from your billing company who's got skin in the game, probably mistake number one for these guys. But these folks came over to me and they presented me one of those, let's call it a lipstick on a pig contract after the blatant anti-kickback issues that I saw before Operation Brace Yourself. This was a situation where they could swear up and down that the folks that they were doing business with, no funds were flowing from the DME company to the telehealth providers. Telehealth providers were billing the patients directly, or Medicare directly, or getting paid by those providers, and that there was no undue influence. I took a step back. I appreciate that. I took that all in. And for a lot of folks who are not familiar with the intricacies of coverage requirements like Noel or myself are, you're taking a look back and looking at the safe harbors to the anti-kickback statutes and saying, hey, they're paying a flat rate fee. This may fall within the confines of the safe harbor, right? Where you've got a regulation, you've got 35 exceptions. And heck, this may have been one of them. However, when we did a further dive into So we're prescribing orthotic braces and the Medicare coverage criteria says you need to perform certain laxity or range of motion tests. Let's dive into the medical records that Medicare may indeed request upon audit to show medical necessity and justification. How were these telehealth visits being conducted? Was it audio only? Was it a two-way audio video where you could even see the patient? You got to understand these relationships with the telehealth providers, there was no pre-existing relationship between the patient and physician. This was a brand new one-off. So it's not like there's years and years of charters that could be relied upon there. And in doing those intricate dives and looking, even when there was a two-way audio video connection that may properly be billable to Medicare and paid by Medicare, could you really do those required tests that would be required to be performed to evidence medical necessity? So again, after several weeks of pushback between both owner one and owner two, who, you know, I, I was happy to see some pushback because a lot of clients take your word as gospel, and I'm always open to what my clients have to say and to dive into the intricacies and explain it to them. They saw at the end of the day through my explanations that my concern was very real. I mostly had concern from a civil monetary perspective because I didn't see any intent to break the law or to pay any kickbacks based upon what they had shared with me. But I certainly at the very least saw issues with the medical necessity and criteria and that not being met. After much back and forth and after several weeks, owner one and owner two came back to me and said, hey, you know what, Mike? We see that this may be more trouble than it's worth, and we are going to stop doing business as we've been conducting it up until this point.
SPEAKER_03:And Stephen, I probably wanted to just throw in there too, because I had conversation with them even when they came back, because I tell them, you have to kind of get an opinion from Michael before you come back to me. And even when they came back to me, I don't think they were fully persuaded that what Michael said was correct. That's how indoctrinated they were based on their previous biller, right? But they're saying, well, I think these people kind of know what they're saying. So I'm just going to trust the fact that what they're telling me is accurate, but I'm still not persuaded because I've been drinking that Kool-Aid for so long, right? So I think that's also a very important point. And just really to get slightly nuanced, one of the issues also had to do with the fact that certain orthotics require custom modification, right? And this is how really nuanced this is, and that's why it's always important to have the right team. It's the exact same brace, but it's built different way. So I mean the exact product from the manufacturer, Michael and Steven, but it's built two different ways depending on what adjustment is done at the time it's being delivered, right? So if it's just an off the shelf and adjustment done by the patient, it's built with a separate HICPIC code, versus a custom that requires a licensed or certified individual to modify that brace to fit the patient's particular need. And one of the nuance was the supplier was able to build both. because of how they were licensed. But it's not about the licensure, it's about the individual delivery. And that was something that wasn't explained or led them to believe otherwise, that it's once you're credentialed to bill for a certain code, you are able to bill for it. So it goes back to what I said, not because you're paid, meaning that you're entitled to it. There are rules and regs that needs to be followed. To you, Stephen.
SPEAKER_02:In terms of, so Michael, going back to your interactions with owner one and owner two. So look, it took weeks for you to get through to them, right? So in that time, I think you sent like, did you rely just on telephone conversations, but, or did you actually send documentation to them? What kind of, how did you, how did you try to convey your message? I mean, you understood that they didn't just get it all 100% the first time you talked to them, right? I mean, so how did you actually convey all your advice to them?
SPEAKER_01:You know, our first meeting was probably an hour, an hour and a half. And again, in person with a lot of back and forth and pushback. The laws that we talk about in the health care space are very, very nuanced for every law that we have. We've got practically a dozen plus exceptions for each one, each one. And we're talking about multiple laws that were implicated by this. So in follow up to my hour and a half initial meeting with them, they probably got a 10 or 15 page email that specifically set forth. Here's what I understand. about what you're doing. Here's the laws that I believe that apply. And here are the options and the risks as far as proceeding forward accordingly. Really breaking down the information that we discussed because I don't expect my clients in such a nuanced industry, especially who are not licensed healthcare professionals, to take it all in and digest it. And so to have this information at their fingertips to review and digest in the many nights that I'm sure that they did from our meeting is just vital in this space. There's so much room for miscommunication and misinformation and misunderstanding. And so I, to this day, believe it's vital in this space so that everything's clear and folks can fall back upon it to put everything in writing to our clients when there are so many nuances involved. And so in that two-week period, as Stephen, you went through, and you'll talk about later, I'm sure, dozens and dozens of email correspondence.
SPEAKER_02:Yeah, and I think that's what's, and that is, I think, one thing that was very impressive about what Michael's interactions with owner one and owner two. It was multiple conversations and multiple writings. There were emails, there were memos, there was more emails. It was a back and forth process. So, and I think, Michael, I think the big thing was, I mean, in your interaction, I mean, when you sent your memo to them about kind of going through, did you just automatically assume that they fully understood every single thing you sent them just because you sent it in a memo one day?
SPEAKER_01:No, this is a review, digest, and let's set a call to discuss it and make sure that we understand it.
SPEAKER_02:Yeah. And I think that's really important because ultimately, this is really confusing stuff. It's really confusing stuff. I think it's confusing for lawyers, to be honest. And if it's confusing for lawyers, it's really confusing for clients out there who are trying to navigate things, especially lawyers. if they're getting conflicting advice from other people. And I think Noel and Michael both refer to this, but owner one and owner two, as they're talking to Noel and Michael, they were hearing from... the biller they had that Noelle and Michael didn't know what they were talking about. Forget about it. So, and that was one of the issues that I think Noelle and Michael were trying to deal with because they were trying to talk to owner one and owner two. And basically while someone else was telling them to disregard everything they were saying. So, Michael, I mean, ultimately, so how did you get through? I mean, what did it take to get really, to get through to them and kind of help them understand where you were coming from?
SPEAKER_01:I think Knoll played a great big part of that as well, because as they went to their billing company or biller and expressed disbelief or distrust or not necessarily fully understanding what I was saying, they went to Knoll with the same. And it took really diving into the LCDs from a legal and a biller perspective for them to see that not only may there be some ambiguity there, but they may be falling on the wrong side of gray with respect to the state of the industry and what was going on. So I think at the end of the day, given that we were coming out of Operation Brace Yourself, and although, of course, their actions didn't come close to mirroring what the folks did that got caught up in those initial arrests and indictments, they saw at the end of the day that it wasn't worth building a business around something that could have that ambiguity or worse. From my understanding.
SPEAKER_03:Yeah, and Steven, you touched on this as well. You know, posts, brace yourself. there was some guidance that came out from the government. I think that also helped in our endeavors, because subsequent to that, Medicare came out with some guidance that was on the side of what Michael and I have been saying over the last couple of weeks. So the timing, I guess, was perfect, and they actually saw that what we said was great. And Michael touched on this earlier, but not all billing companies are created equal, right? And it's really just the reality. And we just have to make sure that we're adherent to the rules. Where there is gray areas, we err on the side of caution because, you know, one of my law professors put it this way, the healthcare space is like a minefield with tripwires in every direction you step. And that's the reality. So, you know, if in doubt, it's best for you to proceed with caution and get good advice. People who don't have stake in the game or people who are gonna give you the advice, regardless if it benefits them directly or indirectly or not. They're gonna give you the right advice. I
SPEAKER_01:would add a blindfold to running around in that minefield with respect to that analogy, and it's wonderful, Noel.
SPEAKER_02:As a result of all their conversations with Noel and Michael, owner one and owner two decide to shut down their business entirely. They still thought they had been doing the right thing and doing things correctly. And they were still hearing from their biller that Noelle and Michael didn't know what they were talking about. But they understood Michael's concerns, even if they didn't fully understand everything Michael was saying. And they decided they wanted to shut down the business. They wanted to do the right thing, and they understood the advice about the risks. So they shut this all down. And then... But unfortunately, that wasn't quite the end of the story. But before we get to that, Noelle, Michael, just any thoughts for our audience about how to convey all this stuff to clients? These are difficult concepts. Any advice you have to give people in trying to explain these concepts to them? Michael, why don't we start with you?
UNKNOWN:Sure.
SPEAKER_01:I think a major takeaway for attorneys or other advisors that may be watching this, in advising individuals and clients in such a complex space, make sure that the message is heard and is conveyed and is understood as much as possible. Even if your clients may not agree with the message that is being heard or conveyed, make sure that they understand it. We're dealing with very, very complex issues and regulations, a law with 50 Jamal?
SPEAKER_03:Yeah, and I'll say is from the provider perspective, always try to seek, not all builders are created equal, not all consultants are created equal. Maybe it's helpful to probably get the opinion of multiple and compare them all to see what makes sense, right? And just make sure that the advice you're getting, there's no other ulterior motives or other incentives tied to that that would influence the decision that you get. Billing can be very complex. I've been asked as a subject matter expert to be involved with a lot of cases that have very nuanced policies and nuanced billing requirements that probably is not common sense to the average person, right? So I say, just make sure that you get proper guidance from an appropriate individual with the experience and with the integrity and who puts compliance at the forefront. And for consultants, make sure you document everything, every conversation that you have with anyone that have always have it memorialized in an email or a memo, just so that it's clear what the position is because sometimes you may have a conversation and what someone took away from it may not necessarily mean what you meant to communicate but having a follow-up email that memorializes the conversation gives them a second opportunity to say well okay this is not what i actually understood from our conversation can you clarify and then allow for as much dialogue as possible until they actually get it. But those are just really some of the takeaways that I would definitely encourage both providers and consultants who are involved in this very complex minefield of called healthcare compliance.
SPEAKER_02:As I said, unfortunately, talking to Noelle and Michael was not the end of the story. So unbeknownst to owner one and owner two, the federal bureau investigation had already opened an investigation into owner one and owner two's business, actually even months before they even met Noel and Michael. And even though they shut down the business, the FBI continued their investigation. And two years after owner one and owner two talked to Noel and Michael, they were charged in federal court with healthcare fraud crimes and violations of the anti-kickback statute, all relating to the DME businesses. And that's where I and another lawyer, Jonathan Meltz, came into the story. And that's what we're going to cover in part two of this podcast. So I want to thank Noel and Michael for everything they did on behalf of owner one and owner two, which we will come back to in part two. And we will, I hope you come back and hear the rest of the story. And thanks again, everyone.
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