April 11, 2025 • 28 mins
Sandy DiVarco, Partner, McDermott Will & Emery LLP, and Dan Hettich, Partner, King & Spalding LLP, discuss issues related to Medicare and the practice of law in this area. They cover Medicare reimbursement for hospitals, different licensure requirements, EMTALA, provider-based status and site-neutral care, the Advocate Christ case, and what it’s like as an attorney to practice in a niche area like Medicare law. Sandy and Dan, among others, were authors of AHLA’s Fundamentals of Health Law, Eighth Edition.
Watch the conversation here.
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Speaker 1 (00:00):
Speaker 2 (00:04):
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Speaker 3 (00:27):
Hello, my name is Sandy de Barco , and I'm a
partner with McDermott Will andEmory in our health and life
sciences group, resident inChicago. And I am a partner ,
uh, focusing on a mix ofregulatory matters and
nonprofit healthcaretransactions.
Speaker 4 (00:44):
And hello everyone.
My name is Dan Ick . I'm apartner at King and Spalding in
in their healthcare group. I'mresident in Washington DC um,
and I focus my practice onMedicare reimbursement issues ,
um, within that gamut, advisingclients on some of the
complexities , uh, but alsolitigating , uh, some of those
issues when we think thegovernment isn't paying them
(01:06):
the way the statute or, or itsown regulations say they should
be paid. Um , very happy to ,uh, be joining you.
Speaker 3 (01:14):
Great. And I know both you and I contributed to
the recent updates to thefundamentals of health law ,
um, a HLA publication. Um, andI know , uh, since my practice
crosses a bit into Medicare,that there's just a lot to
unpack there. So if you had twoor three minutes, how would you
explain Medicare to someone?
Speaker 4 (01:35):
Yeah, that's a tall task. Medicare obviously is, is
very complex, but I think thenutshell is, is almost
conveying that complexity thatMedicare is the single biggest
, uh, health insurer payer inin the nation. It covers , uh,
nearly all Americans over age65. And if you think of about
who needs hospital services,particularly inpatient hospital
(01:57):
services, it's mostly peopleover age , uh, 65. So it's
incredibly important to, tohospitals, to the overall , um,
healthcare industry , uh,across the country. In many
ways, it sets the tone. Andmaybe to get a little bit more
technical with , I think I usedthat one minute there, so I got
two minutes left. I'll say it'sdivided into four parts. Um,
(02:21):
and you know, this might comeup in, in our conversation,
Sandy, that Part A is focusedon inpatient , uh,
reimbursement, part B, MedicarePart B is, and this is like
different parts of the statute,the Medicare statute, part B on
outpatient, so physician andother outpatient services. Part
C is really interesting. That'skind of where the managed care
rules , uh, reside for , um,you know, these private
(02:44):
insurance companies that thatpartner with Medicare to
provide alternatives forMedicare beneficiaries. And
then I think the newest entrywas, is Part D, which is , uh,
Medicare's kind of prescriptionpharmacy benefit , uh, section.
And I think, you know, there'slawyers that probably focus on,
on each of those parts. Um, soI don't know if that was two or
(03:04):
three minutes, Andy , but thatwould , that would be the
nutshell that, that I wouldgive.
Speaker 3 (03:10):
That's great. And what are some hot topics right
now in Medicare that you thinkpeople should be aware of?
Speaker 4 (03:16):
Yeah, I, I think there are several. Um, some are
more, some my particular focuswithin that is on , uh, mostly
part A, you know, inpatienthospital reimbursement. Um, and
really, you know, you can kindof, as I alluded to with all
the different parts, they'reall different sorts of
specializations withinMedicare. Um, so I'll , I'll
(03:37):
focus on, on hot topics in , inthat area primarily. Um, one I
think and actually does reach ,uh, more broadly is this recent
Supreme Court case , uh, calledLoper Bright that folks might
have heard of. I think HLA hada another podcast , um,
dedicated to that, to thatissue. Um, but that overturned
(03:58):
Chevron deference. So a lot ofwhat Medicare lawyers do is
interpret statutes , um, andalso look at the agency
regulations that are supposedto implement the statutes. And
historically under Chevrondeference, you know, even if
the agency's interpretationlooked like not the best
interpretation of the statute ,um, it would still stand as
long as it was reasonable.
That's what Chevron said. Uh,but just last June, the Supreme
(04:20):
Court said, no, courts decidewhat the best reading of the
statute is, and , and that'swhat controls, and that
overturned 40 years worth of,of precedent on the Chevron.
Um, so that's very exciting inMedicare for, you know,
administrative law in general,but in Medicare in particular.
So I, I think that's one , uh,issue that , um, folks should
be focused on. I think anotherone less , uh, optimistic, if
(04:44):
you will, less favorable forhospitals and, and the
healthcare industry is , um,some of the, you know, within
this , um, period of, of budgettightening and , uh, focus on
fiscal austerity, et cetera, Ithink some of the proposed ,
uh, cuts and reductions toMedicare, I think there's , um,
a false dichotomy that folksthink, you know , as long as
(05:05):
you're not touching beneficiarybenefits directly, you know,
it's, it's fine. But there aremany proposals currently being
floated that would reducehospital reimbursement, and
that has, you know, perhapsindirect, but, but pretty
quickly begins to affectbeneficiary services. And there
are several kind of bigproposals that are out there
about eliminating, for example,Medicare bed debt or
(05:28):
substantially changing andreducing the way , uh, the
government pays for , uh,hospitals that treat a
disproportionate share ofindigent patients. Um, things
like that, that I think is, isvery important , uh, for folks
to be aware of. And, and again,to understand it's not just
cutting payments to thehospitals eventually , uh, and
pretty, pretty quickly. It ,uh, it affects Medicare
(05:50):
beneficiaries. Na , I know yourchapter focused on , um,
hospital , uh, regulations and,and operational issues. Um, if
you had to explain how Medicarerequirements impact operations
at hospitals and, and thedifferent licensure
requirements, if, if thosediffer and, and how that all
works together.
Speaker 3 (06:12):
It's sort of the, the other side of the coin of
your practice area in manyways, which is, you know ,
you've got policy and payment ,um, and how those regulations
work and how all the differentparts work together. And a
significant part of my practiceis working with hospital and
health system clients on theconditions of participation or
conditions for coverage and howthose regulations are actually
(06:34):
put into practice and whathappens when things go awry ,
uh, with a survey or a patientcare issue. I'm a nurse by
training, worked in anintensive care unit at an
academic medical center beforelaw school. So I found myself
to have an instant affinity forthese types of operational
issues. And while I left thebedside well before , uh, EMRs
even took over, it's somethingstill that I find just
(06:56):
fascinating. So on the, theenforcement side, if you will,
of Medicare, you know , ifyou're a hospital or another
type of healthcare facility orprovider, you need to follow
the regulations that apply toyou. Um, so using hospitals as
an example, you're talkingother part A providers, as
you're saying sometimes part B, um, and they need to follow
the conditions ofparticipation. And that is a ,
(07:17):
you know , a set of 20 somerequirements with some subparts
that cover everything from howyour governance is structured
to how your medical staff isstructured to life safety code,
you know, and on and on patientrights, et cetera, all these
sorts of things. And subparts.
And if there is an issue, be itfound on a survey or on a
complaint that is raised by apatient or a staff member or
(07:38):
something that appears in thepress, for example, hospitals
are subject to surveys , uh,that can go on. I, I described
them as, you know, from the,the rafters to the floorboards
, uh, because it couldliterally be someone, a
surveyor popping up yourceiling tiles to check out your
wiring for life safety code allthe way down to your
floorboards to make sure thingsare clean , uh, that your
(08:00):
kitchen is run properly, thatpatients are not restrained
unduly. It really runs the, thefull spectrum of things you can
imagine happening in thehospital context and the
process to respond to that andto make sure that the ultimate
, uh, penalty that can beimposed, which here would be
termination of the hospital'sprovider agreement, is avoided
at all costs. It's a verydraconian remedy. It's not the
(08:24):
type of remedy on the hospitalside , uh, where there's really
like an intermediary step , uh,for some other providers like
skilled nursing providers.
There's financial penalties andother things that come into
play, but it's, it's really aninteresting side on how all the
policy pieces fall together andhow providers actually have to
operate under them , um, oncethey are, they're imposed.
Speaker 4 (08:46):
So I know there are instances, some recently , uh,
pretty heavily covered in thepress where state and federal
requirements might, mightdiffer or , um, might allege to
differ. What's your advice toclients? I mean, well, first,
you know , have you seen those, uh, situations? Can you
describe some of them and thenwhat's your advice to clients
(09:06):
in how to reconcile that, thattension?
Speaker 3 (09:09):
Right. I mean, it , it , there were always some
issues in some states , uh,right, like a Florida or a
Texas or a California where astate requirement may not have
meshed exactly with the federalrequirement. Um, but in the new
administration, there's been alot of changes, and I should
back up, even before the newadministration you mentioned LO
or Bright , that sort of openeda whole new avenue sometimes
(09:30):
for clients to say, you know,is this interpretation of this
regulation is the interpretiveguidance around some of these
conditions of participation ,um, actually things we could
push back against in a way thatdefinitely was not on anyone's
radar before because of thatdeference that had been
afforded to them. So thoseseeds were already planted
before the new administration,but since the new
(09:52):
administration came in withsome of the executive orders
that have come out, inparticular, there have been
conflicts almost immediatelybetween state law and federal
law , um, at least, and by law,I mean here, some of the
executive orders not yet reallyput into legislation. So things
like gender affirming care ,um, some of the concerns around
, uh, women's healthcare , forexample, all of these things,
(10:14):
conflict. I live in Illinois,we're a great example on the
gender affirming care and , uh,women's healthcare procedure
route, which is, you know, whatstate law and the Attorney
General has said is the law ofthe land here in Illinois does
not comport with the executiveorders. Um, clients around the
country are facing this tovarious degrees. I mean, we all
see it in , uh, the media ofall varieties out there every
(10:37):
day , and our listservs on thehealth law side every day . And
unfortunately, often I, I endup invoking the classic lawyer
answer of, it depends, right ?
There are definitely , um, someclients healthcare systems, for
example, where they may have acertain cultural view on some
of these items. And I , youknow, I think things sort of
(10:57):
fall into a variety of buckets.
So a lot of the discussion endsup being, in many respects,
less about the executive orderand more about the risk balance
of where an organization iscomfortable or not in sticking
with a certain position. Andagain, you see that in the
news. You see the variety ofresponses that hospitals and
healthcare systems have had tosome of these executive orders
(11:18):
all the way from, you know,very strident. We are not
changing anything down to, youknow, we have changed
everything and everything inbetween. I think when the
orders first came out, therewas just a, a reaction of
pulling back on a lot ofthings. But I think clients
have been weighing some of thepros and cons and trying to
determine the risks at thisstage , uh, and identifying
(11:39):
where they might be comfortableand not. I think as things move
forward, obviously many of theexecutive orders have been
stayed that has given clientssome breathing room to really
make up their minds and tothink about what they might do
if indeed, on a legislativebasis, some of these become
more permanent changes, willthe conditions of participation
change to hit some of these,these issues and concerns? Will
(12:01):
they be shoehorned intoexisting conditions of
participation like patientquality and safety? All that
remains to be seen. Uh, butit's definitely something that
is a case by case discussionbased in part on the state, the
location of the client, theculture of the client, their
risk tolerance, and sort ofwhere they feel like they wanna
put their efforts and resourcesgoing forward.
Speaker 4 (12:22):
Stan , on some of those issues, are they , you
know , potential changes, howmany of them would you say
would require new legislationand , and how much of it would
just be the agency which ispart of the executive branch?
Could, I mean, presumably, Idon't know if it would require
notice and comment rulemaking,but could somewhat unilaterally
, um, make those changes?
Speaker 3 (12:42):
Yeah, I think that it also, I think, falls in the
spectrum. So the notice andcomment, you know, there's been
some mention about notice andcomment, perhaps not applying
all the time anymore in atraditional way that we all got
used to right . Uh , working inthis space. So that's sort of
one issue. I , I do think,
Speaker 4 (12:56):
And that's the , that must the , uh, Richardson
waiver .
Speaker 3 (12:58):
Yeah. Yeah. So I think there's a , um, a
potential for there to be whatI would call sort of
interpretive changes ordiscretionary changes. Now,
those I think are , again, aremore likely to challenge to
face challenges in our new postLoper Bright era to determine
how are we really interpretingthese things and not , um, and
it may be the sorts of thingswhere , uh, hospitals in this
(13:20):
example, would wanna forgeahead to get some sort of
judicial determination on how,how that's going to look. Now,
none of that is going to makehealthcare any more stable or
make the resources of any ofthese providers, as you
mentioned , uh, you know , whoare potentially facing cuts
both from Medicare andMedicaid, possibly feel any
more stable. But it'sdefinitely the sort of thing
where, it reminds me of the COera, not to bring that up
(13:42):
again, but where things seem tobe changing, you know, day to
day , week to week . And someof the advice you gave was
based on here's what we knowtoday. Um, and, you know , we
have the structure thatMedicare provides as , as you
advise clients, and then we'retrying to drill it down to
actual operation andimplementation , um, on a daily
basis.
Speaker 4 (14:04):
That makes sense.
Sounds like , uh, interestingtimes and, and a bit fraught
Speaker 3 (14:09):
, right? It
it's like 2020 all over again
in many respects. Um, now whenyou work in the Medicare space
and you're focusing on, youknow, the, the different parts
and litigation and advisingclients, you know, to me that
sounds , uh, you know, like aregulatory geeks dream, but do
you feel like you're sort ofsegmented away in your
(14:29):
practice? Or are there thingsyou, you also do on the side
or, you know , what , what's,what's the story there?
Speaker 4 (14:35):
Yeah, I , I get that question from, from folks
particularly, you know, some ,um, law students or, or young
associates that arecontemplating a , a career in
healthcare law or with ourpractice. And , um, I tell them
honestly, you know, I don'tfind it , um, stifling , uh, at
all. And I think while, I meanfirst 'cause Medicare, as we
(14:57):
kind of already alluded to, andif you, you know, pick up this
giant book , uh, you'll, you'llsee it's, it's amazingly very
amazingly complex. There'salways a new something else to
learn, a new challenge. Um, butbeyond that, you know, although
Medicare is kind of the commontheme in my practice and, and
many other , uh, attorneyspractice within that arena, so
(15:20):
that's the common thread, but Iget to help my clients in all
different aspects of , um, kindof bring all the tools to bear
within that arena of Medicarereimbursement. So, for example,
I already mentioned one of thethings I do a lot of is, is
litigate. Um, and I enjoy that, uh, a lot, the brief writing,
the oral argument , uh, etcetera. But then also, you
(15:43):
know, you can litigate when youthink the laws on your side,
the statute of regulation, butsometimes it's not. It's just,
you know, the argument isn'tthere. And then I've, I've done
some lobbying work. We have a ,a team here at King and Sping,
as most law firms do, thatfocus on government relations.
Um, they know who the playersare, who the committees are,
but they need a subject matterexpert when really the , the
argument is just a statuteneeds to be changed. It doesn't
(16:04):
make sense. It's, it's hurtinghospitals or beneficiaries
without, you know, any, anyreason. Um, so I've gotten to
do that type of work, which isa lot of fun in , in a
different way. Um, also somefalse Claims Act defense.
Obviously, there are attorneysthat dedicate their careers to
, uh, false Claims Act defense.
I'm brought in more when theallegation has to do with some
(16:27):
technical Medicarereimbursement issue. You can
imagine it's so complicatedthat, you know, a creative
whistleblower can find somepotential or alleged , um,
variation from, from what, youknow, some manual said on page
10,004. Uh, and that's where asubject matter expert like,
like me might come in toexplain how it really works.
(16:49):
Um, and then sometimes, andthen of course, there's no
more, you know, verytraditional regulatory practice
of just helping your clients ,um, deal with all of these ,
uh, complex rules. Um,sometimes, again, one of the
things I like a lot abouthealthcare practice in general,
but Medicare work that I do isin , in many instances, you see
a pretty, kind of what Istarted off, it's not just
(17:11):
hospital reimbursement. You seethe effect on beneficiaries in
the community often prettydirectly. Um, I had one client
that , um, Medicare will onlypay for, will only establish it
gets complicated , um, apayment system for hospitals
that have new residencytraining programs, new
programs, training physicians.
(17:33):
Um, and so this hospital foundout the government didn't think
its program was new. Um, it washoping to start a really robust
program with, you know, over ahundred residents that would be
transformative. But it wastold, you know, it , it wasn't
new and, and they wouldn'tqualify. And we were able to
litigate both litigate andlobby on that issue and finally
get a change. And now thathospital has, you know, 150
(17:55):
residents , uh, it's reallybeen transformative. Um, so,
you know, for, for all thosereasons, I find it, you know,
very fulfilling actually. And,you know, and , and the
opposite of stifling andhelping my clients figure that
out and navigate that process.
And as I said, bringing allthose tools of, you know,
litigating, lobbying, advocacy,educating to bear is really
(18:19):
quite , um, quite fulfilling.
Speaker 3 (18:22):
I, I always think back to when I was a young
lawyer and I would tell people,oh, I'm a healthcare lawyer.
The automatic assumption, maybeit was my nursing background or
more generally was, oh, you'rea med medical malpractice
defense lawyer,
Speaker 4 (18:34):
,
Speaker 3 (18:35):
Right ? Like , no offense to them, but like,
there's just a lot more to the,the , the practice than, than
that sort of personal injurytype perspective. It is, you
know , uh, almost a , a selfperpetuating thing. There are
so many changes in regulationover time , um, and it's
amazing to be able to keep upwith them and to get some of
those wins feels great.
Speaker 4 (18:52):
Yes, yes. That , that's one nice thing about
litigating you get eventually,it might take a while,
sometimes a long while, buteventually you get an answer
and , and hopefully it's afavorable one, but even if it's
not, I've, I've, I've lostcases too , obviously, and the
ones that really stick is when,you know, you feel like a judge
didn't dig in or, or didn'treally understand. In most
(19:13):
cases, that's not the case,though, in most cases. You
know, the , I I feel like thesystem works well. The judges
dig in, they understand thatthey might disagree, and that
you can live with, you know ,reasonable people can disagree.
It's, it's more when , like youdidn't, you didn't really
follow it or that it becomesmore, more galling . But , um,
then you alluded to alreadyseveral regulatory challenges,
(19:34):
particularly in, in today'senvironment. Other others that
you would highlight, maybe ,maybe more traditional ones ,
um, that your hospital clientsare, are facing, you know, in,
in this time period inparticular.
Speaker 3 (19:48):
Yeah, I do feel like tala is what, what's old is new
again. Mm-hmm .
Um , and you know , some ofthat is related to some of the
shifts in the post-opsenvironment and, and some of it
is just the nature ofhealthcare right now with Ed
overcrowding Problems withBorders, you know, the M tal m
Tal L is the Emergency MedicalTreatment and Labor Act. Um, it
(20:09):
requires hospitals that areenrolled with Medicare, that
have emergency departments,just to simplify it , um, to
provide a medical screeningexam and stabilizing treatment
to anyone who presents for thatcare. Um, it was founded as a
very simple premise, which isthat if someone seeks care in
an emergency department for anemergency and they are, you
(20:31):
know , a pregnant person, orthey are an elderly person, or
they have a behavioral healthissue, that if they are
uninsured, that they should notbe turned away because that's
obviously very detrimental. Um,there's a series of situations
that led to the passage ofEMTALA many, many decades ago
now that involved, and thissounds terrible, but hospitals
basically taking patients intheir hospital gowns and
(20:53):
leaving them on the streetbecause they didn't have
coverage and they didn't wantto care for them and not be
reimbursed. Um, so the simplepremise one would think it has
grown into this very byzantinearea of regulation with case
law attached on top. Um, andit's just become an incredibly
fraught thing. And I feel likeit comes in waves. And some of
my clients now are in the midstof a wave of having issues
(21:15):
about what do we do when thishappens or that happens, or
with, you know, patients whoare perhaps homeless and who
are coming to the ED five timesa day because they're cold or
they are hungry. Um, and, youknow, how do they balance their
responsibilities withoutmissing an issue that perhaps
one of those individualsactually does need care. Tala
is one where, you know, again,I feel like what's old is new
(21:36):
again, it's back , um, and it'snot gonna be going away. And
hopefully at some point therewill be some better refinement
of the regulatory scheme thereto make sure that that what
underlies the regulation, thegood rationale behind it, is
maintained while perhaps makingit a little simpler for
hospitals to actually complywith. Um, and then the other
big thing that is, you know ,sort of coming up in wave
(21:58):
stress right now are ties intowhat you look at from the
reimbursement side, which isprovider based status and site
neutral care. Mm-hmm . Um , and how
that operationalizes, sothere's the payment
implications, but also theimplications of how do we
follow all these rules to makesure that the locations we have
comply and that we are surethat we're billing properly or
assigning them correctly forother purposes outside of
(22:21):
reimbursement. If it's a siteneutral world, is it a three 40
B or other implication? Sothose sorts of questions, you
know , come up all the time.
Um, and, you know , I feellike, again, are , are sort of
in waves now as hospitals andhealth systems figure out where
they're gonna go in a postpandemic environment. You know
, I feel like from day to daywe read the stories about we
need more beds to , we needmore outpatient care to , we
(22:44):
need more care in the home. Andit's just all very unsettled.
Then at some point , um,there's gonna have to be some
alignments on, you know , wheredo you really need the , the
sites of care? How are theygoing to be paid for, you know,
in a way that when you applythe , the structure of A, B, C,
D and whatever other lettersthey come up with down the
road, like is gonna make senseand be rational.
Speaker 4 (23:04):
Mm-hmm
. Yeah, those sound , um,
really consequential , uh,issues. Like I said, everything
old is, is new Again. It mademe think, Sandy , when you were
speaking , um, one item Iforgot. Uh , when you asked me
at the outset of, you know,important hot topics , um,
there is , uh, a MedicareSupreme court, a Medicare case
(23:24):
pending in front of the SupremeCourt that I , I should have
mentioned, obviously , uh, hottopic, we don't, there's aren't
, there's not too many Medicarecases that get all the way to
the Supreme Court. Um, and it'san important one, again,
consistent with that theme of,of ultimately, you know, like,
like Antala and some of theseother issues affecting
patients. Uh, the issue, it's acase called Advocate Christ. It
was argued , uh, back inNovember , uh, should be
(23:47):
decided probably any day atthis point. The Supreme Court
has, I think, decided seven of,I mean, four of the seven
November cases already. Uh, soone of the three cases yet to
be decided is this advocateChrist. And the issue there
again, hospital reimbursementhospitals get , uh, increased
reimbursement if they treat adisproportionate share of
(24:07):
indigent patients. The ideabeing kind of, as you alluded
to a little bit in the EMICcircumstance, that indigent
patients tend to be moreexpensive than average. They
treat, they tend to have morecomorbidities, less, less
healthcare . Um, other, otherissues besides , um, medical
issues, physical issues ofhomelessness, et cetera , et
cetera. And , uh, one of theproxies for measuring whether,
(24:29):
how many indigent patients ahospital treats is, how many of
a hospital's Medicare patientsare entitled to supplemental
security income. And that'sreserved for people who are,
were pretty pretty indigent.
Um, when it comes to that CMSentitled , um, I mean ,
interprets that phrase entitledto SSI very narrowly that only
(24:50):
a patient that receives a cashbenefit in a particular month.
So even if the patient hasapplied, been enrolled , uh,
and usually a one yearenrollment period , if in a
particular month the patientdoesn't receive that SSI
benefit, CMS says you weren'tentitled. And the hospitals
instead are arguing, no, you'reentitled for that full year.
Uh, there's all sorts ofreasons why you might not get ,
(25:10):
uh, your check in a particularmonth if you didn't update your
address. Um, in some cases, CMSor SSA, this is actually the
Social Security Administrationthat's sending the check. They
can't send it to thebeneficiary directly because,
you know, the person has, hasmental issues or whatever the
case may be. So they're lookingfor a designated , uh,
representative, and if theydon't have that, they can't
send the check. So all , allthose type of patients are
(25:31):
excluded from this measure ofindigency. And that obviously
adversely affects hospitals andkind of consistent with the
theme that I started with, youknow, by extension, you know,
the , um, indigent patientsthat, that the hospitals serve.
So it's an important issue ,um, for hospitals. Folks are
watching it closely. Um, again,I think any day , um, in fact
(25:53):
by the time this podcast is, ispublished , uh, there might be
a decision , uh, from theSupreme Court. I listened to
the oral argument. I think it'sgonna be a split decision. Um,
it seemed pretty clear. It'sgoing too , too close to call.
I think in terms of, I'moptimistic that the hospitals
will win. I'm, I'm hopeful,certainly. Um, but we should
know pretty soon. So it was oneother hot topic that I was
(26:14):
remiss in not mentioning , uh,at the outset.
Speaker 3 (26:18):
Yeah, that's, that's great. I , I think the other,
another thing as you weretalking that made me think of
things that are also shiftingright now is just recently it
was announced that CMS is gonnaconsolidate some of the
regional office functions.
Speaker 4 (26:30):
Hmm . I hadn't heard about that .
Speaker 3 (26:32):
Yeah. So we'll see how that actually pans out. But
on the sort of the operationside and survey and
certification side, you know,again, just another shift , uh,
in another way, you know,perhaps where there may be some
delays or other concerns for,for hospitals and other
healthcare providers to getanswers or have processing of
various , um, concerns , uh,dealt with. 'cause so much has
(26:55):
been, you know, punted to theregional offices or CMS
locations, whatever they'recalling them, they change the
name every few years just to beinteresting. Um, and the state
agencies on the licensing side, um, it seems like, again,
pendulum swing, you know, withthe Fed . Does , does the
federal government wanna handlesome of this stuff? Are they
gonna turf a lot of it back tothe state agencies ? So just a
(27:15):
period of a lot of change, beit on, you know, reimbursement
, um, things like the case youmentioned , uh, new
developments, and then, youknow , how it actually trickles
down to patient care. Um, allof which, you know , fully,
fully explored to some best wecould in the fundamentals
chapter, but it just goes toshow that, you know , there's
almost an impossibility to putsome of this on paper because
(27:36):
it can change so much and soquickly.
Speaker 4 (27:39):
Yeah, yeah . As I said before, it's certainly
very interesting times to be a, to be a healthcare lawyer.
Sandy , I , I think we're outof time. I don't know if you
have any final thoughts. Um,I'll say it was a pleasure
working with you on this and,and having this conversation.
Uh, I said lots, lots more tocome. We could probably do this
every year and have right . Alldifferent topics to talk about
Speaker 3 (27:59):
Recurrent . Yeah, for sure. No, it's been great.
Thanks so much, Dan.
Speaker 4 (28:02):
Take care.
Speaker 2 (28:08):
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Speaker 2 (00:04):
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Speaker 3 (00:27):
Hello, my name is Sandy de Barco , and I'm a
partner with McDermott Will andEmory in our health and life
sciences group, resident inChicago. And I am a partner ,
uh, focusing on a mix ofregulatory matters and
nonprofit healthcaretransactions.
Speaker 4 (00:44):
And hello everyone.
My name is Dan Ick . I'm apartner at King and Spalding in
in their healthcare group. I'mresident in Washington DC um,
and I focus my practice onMedicare reimbursement issues ,
um, within that gamut, advisingclients on some of the
complexities , uh, but alsolitigating , uh, some of those
issues when we think thegovernment isn't paying them
(01:06):
the way the statute or, or itsown regulations say they should
be paid. Um , very happy to ,uh, be joining you.
Speaker 3 (01:14):
Great. And I know both you and I contributed to
the recent updates to thefundamentals of health law ,
um, a HLA publication. Um, andI know , uh, since my practice
crosses a bit into Medicare,that there's just a lot to
unpack there. So if you had twoor three minutes, how would you
explain Medicare to someone?
Speaker 4 (01:35):
Yeah, that's a tall task. Medicare obviously is, is
very complex, but I think thenutshell is, is almost
conveying that complexity thatMedicare is the single biggest
, uh, health insurer payer inin the nation. It covers , uh,
nearly all Americans over age65. And if you think of about
who needs hospital services,particularly inpatient hospital
(01:57):
services, it's mostly peopleover age , uh, 65. So it's
incredibly important to, tohospitals, to the overall , um,
healthcare industry , uh,across the country. In many
ways, it sets the tone. Andmaybe to get a little bit more
technical with , I think I usedthat one minute there, so I got
two minutes left. I'll say it'sdivided into four parts. Um,
(02:21):
and you know, this might comeup in, in our conversation,
Sandy, that Part A is focusedon inpatient , uh,
reimbursement, part B, MedicarePart B is, and this is like
different parts of the statute,the Medicare statute, part B on
outpatient, so physician andother outpatient services. Part
C is really interesting. That'skind of where the managed care
rules , uh, reside for , um,you know, these private
(02:44):
insurance companies that thatpartner with Medicare to
provide alternatives forMedicare beneficiaries. And
then I think the newest entrywas, is Part D, which is , uh,
Medicare's kind of prescriptionpharmacy benefit , uh, section.
And I think, you know, there'slawyers that probably focus on,
on each of those parts. Um, soI don't know if that was two or
(03:04):
three minutes, Andy , but thatwould , that would be the
nutshell that, that I wouldgive.
Speaker 3 (03:10):
That's great. And what are some hot topics right
now in Medicare that you thinkpeople should be aware of?
Speaker 4 (03:16):
Yeah, I, I think there are several. Um, some are
more, some my particular focuswithin that is on , uh, mostly
part A, you know, inpatienthospital reimbursement. Um, and
really, you know, you can kindof, as I alluded to with all
the different parts, they'reall different sorts of
specializations withinMedicare. Um, so I'll , I'll
(03:37):
focus on, on hot topics in , inthat area primarily. Um, one I
think and actually does reach ,uh, more broadly is this recent
Supreme Court case , uh, calledLoper Bright that folks might
have heard of. I think HLA hada another podcast , um,
dedicated to that, to thatissue. Um, but that overturned
(03:58):
Chevron deference. So a lot ofwhat Medicare lawyers do is
interpret statutes , um, andalso look at the agency
regulations that are supposedto implement the statutes. And
historically under Chevrondeference, you know, even if
the agency's interpretationlooked like not the best
interpretation of the statute ,um, it would still stand as
long as it was reasonable.
That's what Chevron said. Uh,but just last June, the Supreme
(04:20):
Court said, no, courts decidewhat the best reading of the
statute is, and , and that'swhat controls, and that
overturned 40 years worth of,of precedent on the Chevron.
Um, so that's very exciting inMedicare for, you know,
administrative law in general,but in Medicare in particular.
So I, I think that's one , uh,issue that , um, folks should
be focused on. I think anotherone less , uh, optimistic, if
(04:44):
you will, less favorable forhospitals and, and the
healthcare industry is , um,some of the, you know, within
this , um, period of, of budgettightening and , uh, focus on
fiscal austerity, et cetera, Ithink some of the proposed ,
uh, cuts and reductions toMedicare, I think there's , um,
a false dichotomy that folksthink, you know , as long as
(05:05):
you're not touching beneficiarybenefits directly, you know,
it's, it's fine. But there aremany proposals currently being
floated that would reducehospital reimbursement, and
that has, you know, perhapsindirect, but, but pretty
quickly begins to affectbeneficiary services. And there
are several kind of bigproposals that are out there
about eliminating, for example,Medicare bed debt or
(05:28):
substantially changing andreducing the way , uh, the
government pays for , uh,hospitals that treat a
disproportionate share ofindigent patients. Um, things
like that, that I think is, isvery important , uh, for folks
to be aware of. And, and again,to understand it's not just
cutting payments to thehospitals eventually , uh, and
pretty, pretty quickly. It ,uh, it affects Medicare
(05:50):
beneficiaries. Na , I know yourchapter focused on , um,
hospital , uh, regulations and,and operational issues. Um, if
you had to explain how Medicarerequirements impact operations
at hospitals and, and thedifferent licensure
requirements, if, if thosediffer and, and how that all
works together.
Speaker 3 (06:12):
It's sort of the, the other side of the coin of
your practice area in manyways, which is, you know ,
you've got policy and payment ,um, and how those regulations
work and how all the differentparts work together. And a
significant part of my practiceis working with hospital and
health system clients on theconditions of participation or
conditions for coverage and howthose regulations are actually
(06:34):
put into practice and whathappens when things go awry ,
uh, with a survey or a patientcare issue. I'm a nurse by
training, worked in anintensive care unit at an
academic medical center beforelaw school. So I found myself
to have an instant affinity forthese types of operational
issues. And while I left thebedside well before , uh, EMRs
even took over, it's somethingstill that I find just
(06:56):
fascinating. So on the, theenforcement side, if you will,
of Medicare, you know , ifyou're a hospital or another
type of healthcare facility orprovider, you need to follow
the regulations that apply toyou. Um, so using hospitals as
an example, you're talkingother part A providers, as
you're saying sometimes part B, um, and they need to follow
the conditions ofparticipation. And that is a ,
(07:17):
you know , a set of 20 somerequirements with some subparts
that cover everything from howyour governance is structured
to how your medical staff isstructured to life safety code,
you know, and on and on patientrights, et cetera, all these
sorts of things. And subparts.
And if there is an issue, be itfound on a survey or on a
complaint that is raised by apatient or a staff member or
(07:38):
something that appears in thepress, for example, hospitals
are subject to surveys , uh,that can go on. I, I described
them as, you know, from the,the rafters to the floorboards
, uh, because it couldliterally be someone, a
surveyor popping up yourceiling tiles to check out your
wiring for life safety code allthe way down to your
floorboards to make sure thingsare clean , uh, that your
(08:00):
kitchen is run properly, thatpatients are not restrained
unduly. It really runs the, thefull spectrum of things you can
imagine happening in thehospital context and the
process to respond to that andto make sure that the ultimate
, uh, penalty that can beimposed, which here would be
termination of the hospital'sprovider agreement, is avoided
at all costs. It's a verydraconian remedy. It's not the
(08:24):
type of remedy on the hospitalside , uh, where there's really
like an intermediary step , uh,for some other providers like
skilled nursing providers.
There's financial penalties andother things that come into
play, but it's, it's really aninteresting side on how all the
policy pieces fall together andhow providers actually have to
operate under them , um, oncethey are, they're imposed.
Speaker 4 (08:46):
So I know there are instances, some recently , uh,
pretty heavily covered in thepress where state and federal
requirements might, mightdiffer or , um, might allege to
differ. What's your advice toclients? I mean, well, first,
you know , have you seen those, uh, situations? Can you
describe some of them and thenwhat's your advice to clients
(09:06):
in how to reconcile that, thattension?
Speaker 3 (09:09):
Right. I mean, it , it , there were always some
issues in some states , uh,right, like a Florida or a
Texas or a California where astate requirement may not have
meshed exactly with the federalrequirement. Um, but in the new
administration, there's been alot of changes, and I should
back up, even before the newadministration you mentioned LO
or Bright , that sort of openeda whole new avenue sometimes
(09:30):
for clients to say, you know,is this interpretation of this
regulation is the interpretiveguidance around some of these
conditions of participation ,um, actually things we could
push back against in a way thatdefinitely was not on anyone's
radar before because of thatdeference that had been
afforded to them. So thoseseeds were already planted
before the new administration,but since the new
(09:52):
administration came in withsome of the executive orders
that have come out, inparticular, there have been
conflicts almost immediatelybetween state law and federal
law , um, at least, and by law,I mean here, some of the
executive orders not yet reallyput into legislation. So things
like gender affirming care ,um, some of the concerns around
, uh, women's healthcare , forexample, all of these things,
(10:14):
conflict. I live in Illinois,we're a great example on the
gender affirming care and , uh,women's healthcare procedure
route, which is, you know, whatstate law and the Attorney
General has said is the law ofthe land here in Illinois does
not comport with the executiveorders. Um, clients around the
country are facing this tovarious degrees. I mean, we all
see it in , uh, the media ofall varieties out there every
(10:37):
day , and our listservs on thehealth law side every day . And
unfortunately, often I, I endup invoking the classic lawyer
answer of, it depends, right ?
There are definitely , um, someclients healthcare systems, for
example, where they may have acertain cultural view on some
of these items. And I , youknow, I think things sort of
(10:57):
fall into a variety of buckets.
So a lot of the discussion endsup being, in many respects,
less about the executive orderand more about the risk balance
of where an organization iscomfortable or not in sticking
with a certain position. Andagain, you see that in the
news. You see the variety ofresponses that hospitals and
healthcare systems have had tosome of these executive orders
(11:18):
all the way from, you know,very strident. We are not
changing anything down to, youknow, we have changed
everything and everything inbetween. I think when the
orders first came out, therewas just a, a reaction of
pulling back on a lot ofthings. But I think clients
have been weighing some of thepros and cons and trying to
determine the risks at thisstage , uh, and identifying
(11:39):
where they might be comfortableand not. I think as things move
forward, obviously many of theexecutive orders have been
stayed that has given clientssome breathing room to really
make up their minds and tothink about what they might do
if indeed, on a legislativebasis, some of these become
more permanent changes, willthe conditions of participation
change to hit some of these,these issues and concerns? Will
(12:01):
they be shoehorned intoexisting conditions of
participation like patientquality and safety? All that
remains to be seen. Uh, butit's definitely something that
is a case by case discussionbased in part on the state, the
location of the client, theculture of the client, their
risk tolerance, and sort ofwhere they feel like they wanna
put their efforts and resourcesgoing forward.
Speaker 4 (12:22):
Stan , on some of those issues, are they , you
know , potential changes, howmany of them would you say
would require new legislationand , and how much of it would
just be the agency which ispart of the executive branch?
Could, I mean, presumably, Idon't know if it would require
notice and comment rulemaking,but could somewhat unilaterally
, um, make those changes?
Speaker 3 (12:42):
Yeah, I think that it also, I think, falls in the
spectrum. So the notice andcomment, you know, there's been
some mention about notice andcomment, perhaps not applying
all the time anymore in atraditional way that we all got
used to right . Uh , working inthis space. So that's sort of
one issue. I , I do think,
Speaker 4 (12:56):
And that's the , that must the , uh, Richardson
waiver .
Speaker 3 (12:58):
Yeah. Yeah. So I think there's a , um, a
potential for there to be whatI would call sort of
interpretive changes ordiscretionary changes. Now,
those I think are , again, aremore likely to challenge to
face challenges in our new postLoper Bright era to determine
how are we really interpretingthese things and not , um, and
it may be the sorts of thingswhere , uh, hospitals in this
(13:20):
example, would wanna forgeahead to get some sort of
judicial determination on how,how that's going to look. Now,
none of that is going to makehealthcare any more stable or
make the resources of any ofthese providers, as you
mentioned , uh, you know , whoare potentially facing cuts
both from Medicare andMedicaid, possibly feel any
more stable. But it'sdefinitely the sort of thing
where, it reminds me of the COera, not to bring that up
(13:42):
again, but where things seem tobe changing, you know, day to
day , week to week . And someof the advice you gave was
based on here's what we knowtoday. Um, and, you know , we
have the structure thatMedicare provides as , as you
advise clients, and then we'retrying to drill it down to
actual operation andimplementation , um, on a daily
basis.
Speaker 4 (14:04):
That makes sense.
Sounds like , uh, interestingtimes and, and a bit fraught
Speaker 3 (14:09):
in many respects. Um, now whenyou work in the Medicare space
and you're focusing on, youknow, the, the different parts
and litigation and advisingclients, you know, to me that
sounds , uh, you know, like aregulatory geeks dream, but do
you feel like you're sort ofsegmented away in your
(14:29):
practice? Or are there thingsyou, you also do on the side
or, you know , what , what's,what's the story there?
Speaker 4 (14:35):
Yeah, I , I get that question from, from folks
particularly, you know, some ,um, law students or, or young
associates that arecontemplating a , a career in
healthcare law or with ourpractice. And , um, I tell them
honestly, you know, I don'tfind it , um, stifling , uh, at
all. And I think while, I meanfirst 'cause Medicare, as we
(14:57):
kind of already alluded to, andif you, you know, pick up this
giant book , uh, you'll, you'llsee it's, it's amazingly very
amazingly complex. There'salways a new something else to
learn, a new challenge. Um, butbeyond that, you know, although
Medicare is kind of the commontheme in my practice and, and
many other , uh, attorneyspractice within that arena, so
(15:20):
that's the common thread, but Iget to help my clients in all
different aspects of , um, kindof bring all the tools to bear
within that arena of Medicarereimbursement. So, for example,
I already mentioned one of thethings I do a lot of is, is
litigate. Um, and I enjoy that, uh, a lot, the brief writing,
the oral argument , uh, etcetera. But then also, you
(15:43):
know, you can litigate when youthink the laws on your side,
the statute of regulation, butsometimes it's not. It's just,
you know, the argument isn'tthere. And then I've, I've done
some lobbying work. We have a ,a team here at King and Sping,
as most law firms do, thatfocus on government relations.
Um, they know who the playersare, who the committees are,
but they need a subject matterexpert when really the , the
argument is just a statuteneeds to be changed. It doesn't
(16:04):
make sense. It's, it's hurtinghospitals or beneficiaries
without, you know, any, anyreason. Um, so I've gotten to
do that type of work, which isa lot of fun in , in a
different way. Um, also somefalse Claims Act defense.
Obviously, there are attorneysthat dedicate their careers to
, uh, false Claims Act defense.
I'm brought in more when theallegation has to do with some
(16:27):
technical Medicarereimbursement issue. You can
imagine it's so complicatedthat, you know, a creative
whistleblower can find somepotential or alleged , um,
variation from, from what, youknow, some manual said on page
10,004. Uh, and that's where asubject matter expert like,
like me might come in toexplain how it really works.
(16:49):
Um, and then sometimes, andthen of course, there's no
more, you know, verytraditional regulatory practice
of just helping your clients ,um, deal with all of these ,
uh, complex rules. Um,sometimes, again, one of the
things I like a lot abouthealthcare practice in general,
but Medicare work that I do isin , in many instances, you see
a pretty, kind of what Istarted off, it's not just
(17:11):
hospital reimbursement. You seethe effect on beneficiaries in
the community often prettydirectly. Um, I had one client
that , um, Medicare will onlypay for, will only establish it
gets complicated , um, apayment system for hospitals
that have new residencytraining programs, new
programs, training physicians.
(17:33):
Um, and so this hospital foundout the government didn't think
its program was new. Um, it washoping to start a really robust
program with, you know, over ahundred residents that would be
transformative. But it wastold, you know, it , it wasn't
new and, and they wouldn'tqualify. And we were able to
litigate both litigate andlobby on that issue and finally
get a change. And now thathospital has, you know, 150
(17:55):
residents , uh, it's reallybeen transformative. Um, so,
you know, for, for all thosereasons, I find it, you know,
very fulfilling actually. And,you know, and , and the
opposite of stifling andhelping my clients figure that
out and navigate that process.
And as I said, bringing allthose tools of, you know,
litigating, lobbying, advocacy,educating to bear is really
(18:19):
quite , um, quite fulfilling.
Speaker 3 (18:22):
I, I always think back to when I was a young
lawyer and I would tell people,oh, I'm a healthcare lawyer.
The automatic assumption, maybeit was my nursing background or
more generally was, oh, you'rea med medical malpractice
defense lawyer,
Speaker 4 (18:34):
Speaker 3 (18:35):
Right ? Like , no offense to them, but like,
there's just a lot more to the,the , the practice than, than
that sort of personal injurytype perspective. It is, you
know , uh, almost a , a selfperpetuating thing. There are
so many changes in regulationover time , um, and it's
amazing to be able to keep upwith them and to get some of
those wins feels great.
Speaker 4 (18:52):
Yes, yes. That , that's one nice thing about
litigating you get eventually,it might take a while,
sometimes a long while, buteventually you get an answer
and , and hopefully it's afavorable one, but even if it's
not, I've, I've, I've lostcases too , obviously, and the
ones that really stick is when,you know, you feel like a judge
didn't dig in or, or didn'treally understand. In most
(19:13):
cases, that's not the case,though, in most cases. You
know, the , I I feel like thesystem works well. The judges
dig in, they understand thatthey might disagree, and that
you can live with, you know ,reasonable people can disagree.
It's, it's more when , like youdidn't, you didn't really
follow it or that it becomesmore, more galling . But , um,
then you alluded to alreadyseveral regulatory challenges,
(19:34):
particularly in, in today'senvironment. Other others that
you would highlight, maybe ,maybe more traditional ones ,
um, that your hospital clientsare, are facing, you know, in,
in this time period inparticular.
Speaker 3 (19:48):
Yeah, I do feel like tala is what, what's old is new
again. Mm-hmm
Um , and you know , some ofthat is related to some of the
shifts in the post-opsenvironment and, and some of it
is just the nature ofhealthcare right now with Ed
overcrowding Problems withBorders, you know, the M tal m
Tal L is the Emergency MedicalTreatment and Labor Act. Um, it
(20:09):
requires hospitals that areenrolled with Medicare, that
have emergency departments,just to simplify it , um, to
provide a medical screeningexam and stabilizing treatment
to anyone who presents for thatcare. Um, it was founded as a
very simple premise, which isthat if someone seeks care in
an emergency department for anemergency and they are, you
(20:31):
know , a pregnant person, orthey are an elderly person, or
they have a behavioral healthissue, that if they are
uninsured, that they should notbe turned away because that's
obviously very detrimental. Um,there's a series of situations
that led to the passage ofEMTALA many, many decades ago
now that involved, and thissounds terrible, but hospitals
basically taking patients intheir hospital gowns and
(20:53):
leaving them on the streetbecause they didn't have
coverage and they didn't wantto care for them and not be
reimbursed. Um, so the simplepremise one would think it has
grown into this very byzantinearea of regulation with case
law attached on top. Um, andit's just become an incredibly
fraught thing. And I feel likeit comes in waves. And some of
my clients now are in the midstof a wave of having issues
(21:15):
about what do we do when thishappens or that happens, or
with, you know, patients whoare perhaps homeless and who
are coming to the ED five timesa day because they're cold or
they are hungry. Um, and, youknow, how do they balance their
responsibilities withoutmissing an issue that perhaps
one of those individualsactually does need care. Tala
is one where, you know, again,I feel like what's old is new
(21:36):
again, it's back , um, and it'snot gonna be going away. And
hopefully at some point therewill be some better refinement
of the regulatory scheme thereto make sure that that what
underlies the regulation, thegood rationale behind it, is
maintained while perhaps makingit a little simpler for
hospitals to actually complywith. Um, and then the other
big thing that is, you know ,sort of coming up in wave
(21:58):
stress right now are ties intowhat you look at from the
reimbursement side, which isprovider based status and site
neutral care. Mm-hmm
that operationalizes, sothere's the payment
implications, but also theimplications of how do we
follow all these rules to makesure that the locations we have
comply and that we are surethat we're billing properly or
assigning them correctly forother purposes outside of
(22:21):
reimbursement. If it's a siteneutral world, is it a three 40
B or other implication? Sothose sorts of questions, you
know , come up all the time.
Um, and, you know , I feellike, again, are , are sort of
in waves now as hospitals andhealth systems figure out where
they're gonna go in a postpandemic environment. You know
, I feel like from day to daywe read the stories about we
need more beds to , we needmore outpatient care to , we
(22:44):
need more care in the home. Andit's just all very unsettled.
Then at some point , um,there's gonna have to be some
alignments on, you know , wheredo you really need the , the
sites of care? How are theygoing to be paid for, you know,
in a way that when you applythe , the structure of A, B, C,
D and whatever other lettersthey come up with down the
road, like is gonna make senseand be rational.
Speaker 4 (23:04):
Mm-hmm
really consequential , uh,issues. Like I said, everything
old is, is new Again. It mademe think, Sandy , when you were
speaking , um, one item Iforgot. Uh , when you asked me
at the outset of, you know,important hot topics , um,
there is , uh, a MedicareSupreme court, a Medicare case
(23:24):
pending in front of the SupremeCourt that I , I should have
mentioned, obviously , uh, hottopic, we don't, there's aren't
, there's not too many Medicarecases that get all the way to
the Supreme Court. Um, and it'san important one, again,
consistent with that theme of,of ultimately, you know, like,
like Antala and some of theseother issues affecting
patients. Uh, the issue, it's acase called Advocate Christ. It
was argued , uh, back inNovember , uh, should be
(23:47):
decided probably any day atthis point. The Supreme Court
has, I think, decided seven of,I mean, four of the seven
November cases already. Uh, soone of the three cases yet to
be decided is this advocateChrist. And the issue there
again, hospital reimbursementhospitals get , uh, increased
reimbursement if they treat adisproportionate share of
(24:07):
indigent patients. The ideabeing kind of, as you alluded
to a little bit in the EMICcircumstance, that indigent
patients tend to be moreexpensive than average. They
treat, they tend to have morecomorbidities, less, less
healthcare . Um, other, otherissues besides , um, medical
issues, physical issues ofhomelessness, et cetera , et
cetera. And , uh, one of theproxies for measuring whether,
(24:29):
how many indigent patients ahospital treats is, how many of
a hospital's Medicare patientsare entitled to supplemental
security income. And that'sreserved for people who are,
were pretty pretty indigent.
Um, when it comes to that CMSentitled , um, I mean ,
interprets that phrase entitledto SSI very narrowly that only
(24:50):
a patient that receives a cashbenefit in a particular month.
So even if the patient hasapplied, been enrolled , uh,
and usually a one yearenrollment period , if in a
particular month the patientdoesn't receive that SSI
benefit, CMS says you weren'tentitled. And the hospitals
instead are arguing, no, you'reentitled for that full year.
Uh, there's all sorts ofreasons why you might not get ,
(25:10):
uh, your check in a particularmonth if you didn't update your
address. Um, in some cases, CMSor SSA, this is actually the
Social Security Administrationthat's sending the check. They
can't send it to thebeneficiary directly because,
you know, the person has, hasmental issues or whatever the
case may be. So they're lookingfor a designated , uh,
representative, and if theydon't have that, they can't
send the check. So all , allthose type of patients are
(25:31):
excluded from this measure ofindigency. And that obviously
adversely affects hospitals andkind of consistent with the
theme that I started with, youknow, by extension, you know,
the , um, indigent patientsthat, that the hospitals serve.
So it's an important issue ,um, for hospitals. Folks are
watching it closely. Um, again,I think any day , um, in fact
(25:53):
by the time this podcast is, ispublished , uh, there might be
a decision , uh, from theSupreme Court. I listened to
the oral argument. I think it'sgonna be a split decision. Um,
it seemed pretty clear. It'sgoing too , too close to call.
I think in terms of, I'moptimistic that the hospitals
will win. I'm, I'm hopeful,certainly. Um, but we should
know pretty soon. So it was oneother hot topic that I was
(26:14):
remiss in not mentioning , uh,at the outset.
Speaker 3 (26:18):
Yeah, that's, that's great. I , I think the other,
another thing as you weretalking that made me think of
things that are also shiftingright now is just recently it
was announced that CMS is gonnaconsolidate some of the
regional office functions.
Speaker 4 (26:30):
Hmm . I hadn't heard about that .
Speaker 3 (26:32):
Yeah. So we'll see how that actually pans out. But
on the sort of the operationside and survey and
certification side, you know,again, just another shift , uh,
in another way, you know,perhaps where there may be some
delays or other concerns for,for hospitals and other
healthcare providers to getanswers or have processing of
various , um, concerns , uh,dealt with. 'cause so much has
(26:55):
been, you know, punted to theregional offices or CMS
locations, whatever they'recalling them, they change the
name every few years just to beinteresting. Um, and the state
agencies on the licensing side, um, it seems like, again,
pendulum swing, you know, withthe Fed . Does , does the
federal government wanna handlesome of this stuff? Are they
gonna turf a lot of it back tothe state agencies ? So just a
(27:15):
period of a lot of change, beit on, you know, reimbursement
, um, things like the case youmentioned , uh, new
developments, and then, youknow , how it actually trickles
down to patient care. Um, allof which, you know , fully,
fully explored to some best wecould in the fundamentals
chapter, but it just goes toshow that, you know , there's
almost an impossibility to putsome of this on paper because
(27:36):
it can change so much and soquickly.
Speaker 4 (27:39):
Yeah, yeah . As I said before, it's certainly
very interesting times to be a, to be a healthcare lawyer.
Sandy , I , I think we're outof time. I don't know if you
have any final thoughts. Um,I'll say it was a pleasure
working with you on this and,and having this conversation.
Uh, I said lots, lots more tocome. We could probably do this
every year and have right . Alldifferent topics to talk about
Speaker 3 (27:59):
Recurrent . Yeah, for sure. No, it's been great.
Thanks so much, Dan.
Speaker 4 (28:02):
Take care.
Speaker 2 (28:08):
Thank you for listening. If you enjoyed this
episode, be sure to subscribeto ALA's speaking of health
law, wherever you get yourpodcasts. To learn more about a
HLA and the educationalresources available to the
health law community, visitAmerican health law.org.
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