September 30, 2025 • 48 mins
R. Ross Burris, Shareholder, Polsinelli, and Lindsey L. Lonergan, Senior Associate General Counsel, Wellspan Health, discuss current trends and developments related to audits and proactive strategies for dealing with audits. They cover issues related to CMS claim review programs, the increase in commercial audits versus government payer audits, artificial intelligence, Unified Program Integrity Contractor audits, and the 60-day rule. Ross and Lindsey spoke about this topic at AHLA’s 2025 Annual Meeting in San Diego, CA.
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Learn more about the AHLA 2025 Annual Meeting that took place in San Diego, CA: https://www.americanhealthlaw.org/annualmeeting
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
SPEAKER_00 (00:04):
This episode of AHLA Speaking of Health Law is
brought to you by AHLA membersand donors like you.
For more information, visitAmericanHealthlaw.org.
SPEAKER_01 (00:17):
Hello and welcome to Know Your Audit, Operational
Considerations for Every Kind ofAudit.
Welcome.
I'm Ross Burris.
I'm a shareholder at Pulsanelliin Atlanta, focusing in the
areas of reimbursement auditsand disputes.
I'm joined by my friend LindsayLaunergan, Senior Associate
Counsel at Wellspan Health.
(00:38):
This is a repeat to some degreeof a presentation we did at the
Age LA annual meeting this yearin San Diego.
Lindsay, you want to say hi?
SPEAKER_02 (00:49):
Hey, it's we're so thankful everybody's joining us,
and we're happy to have theopportunity to do this topic
again.
SPEAKER_01 (00:56):
That's right.
Yeah, when we did thisoriginally, it's a um a very
interactive uh discussion.
We had a lot of uh friends inthe audience who participated,
and I think, well, wetechnically bribed a lot of them
with candy and prizes, but uhthey they definitely
participated and uh regardlessof how we got there, and so it's
gonna be a little funny today.
It's gonna be just me and youchatting.
(01:17):
Uh, we also obviously won't haveslides, but we're gonna we're
gonna chat anyway and hopefullyshare some good information and
um enjoy what is my secondpodcast, your first podcast,
right?
SPEAKER_02 (01:29):
Yes, and so we are very appreciative for everybody
giving me grace as we go throughtoday, and hopefully this will
go well.
SPEAKER_01 (01:36):
Right.
I know.
I mean, I feel like we're gonnado like a true video style
podcast.
We should be on couches, youknow, promoting energy drinks or
whatever.
We're uh wearing a big hat withmy company logo on it, but I
guess we'll just have to settlefor the virtual backgrounds
today.
SPEAKER_02 (01:51):
Yeah, I think we've missed an opportunity to have
liquid death water.
SPEAKER_01 (01:55):
That's right.
Yeah, liquid death is oursponsor.
Um, some kind of new tequila orwhatever.
Well, uh, listen, let's startoff talking about the CMS claim
review programs because I thinkit's always important to know
the basic framework of audits.
And obviously, this discussionis gonna focus a lot on
government payers, uh, Medicare,Medicaid specifically.
(02:15):
And then I think we're gonnatalk a little bit about some
audit trends we're seeing in thecommercial space as well.
Um, now, as I mentioned, I'm alaw firm lawyer.
I've been a law firm lawyer mostof my career, except a very
brief start in government.
Uh and so obviously I'm on theoutside advising clients a lot
on these issues.
And typically they don't callthe law firm until the audit has
(02:37):
gotten messy or they've alreadygotten the overpayment demand or
they've already gotten theinvestigation.
Lindsay, you have the advantageof having been in-house counsel
uh and obviously been in a lawfirm before where you did the
same kind of work at the lawfirm with me many years ago, and
now you do it in-house, right?
SPEAKER_02 (02:54):
Absolutely.
I've been now in-house foralmost 10 years.
So I think it's a reallycompatible relationship.
And I think that's the practicalstrategies that we can bring to
everybody on the podcast todayis that what I can offer is what
we as internal counsel should belooking for and how we work with
Revenue Cycle and otherdepartments.
And then when we bring in ourexpert outside counsel, um, you
(03:17):
know, not only to help us dobetter internally, but to get
the successful outcomes in theaudits we get.
SPEAKER_01 (03:23):
That's right.
Um, so let's talk about thedifferent types of claim CMS
claim review programs.
And as I'm sure everyone whowould listen to a podcast like
this is aware, the governmentreimbursement operates on a pay
and chase model, meaning likemeaning they will pay you, uh,
but then they might come backfor it later.
They might chase you down andget your money.
Uh, and so there's two typicaltypes of audit claim review
(03:45):
programs we see for CMS, whichis a prepayment review to reduce
improper payments, and then apost-payment review to recover
improper payments.
So prepays would mean they'renot going to pay you until you
submit additional documents orhave some type of discussion.
And then a post-pay review willbe when they come back months,
(04:05):
maybe sometimes years later, andask for documentation related to
claims that have already beenpaid.
And if you cannot providedocumentation to their
satisfaction, you could befacing an overpayment demand.
Um, these programs are typicallycategorized as either complex,
and complex means it's going toneed a licensed professional to
review documentation.
(04:26):
Licensed professional,obviously, in this case, would
be some type of medicalprofessional.
Uh, could be a nurse, could be adoctor, or someone in between,
sometimes uh different types oftherapists, or a non-complex
review.
And a non-complex program istypically looking for things
like specific documentation.
Do you have a delivery slip?
Do you have an order?
Um, they're not looking atmedical necessity or questions
(04:48):
of whether the care wasprovided.
It's more a question of do youhave all the right signatures
and all the right dates and allthe right documentation?
Um do you want to talk aboutclaim denial determination or do
you want me to keep talking?
SPEAKER_02 (05:02):
No, I will take over, give the listeners a
break.
Umials, obviously, you know,it's our expectation that the
people listening um to this,like we did uh in San Diego,
this was an advanced session.
And so, you know, I think thatthe people who are listening to
us are all the very, you know,heavyweight who've been doing
(05:23):
this a long time, folks.
So claim denials ultimately,we're gonna go through quickly,
you know, it's that it's eithera cover, not a covered benefit,
that the item or service isstatutorily excluded, that it's
not reasonably necessary, or itdoesn't meet other requirements
governed by policy, you know,like national coverage
determinations or local coveragedeterminations.
(05:44):
Um, and then Ross, tell me alittle bit about you know what
program integrity is focusing onat CMS.
SPEAKER_01 (05:51):
So program integrity is typically focused on where
where you see them come up a lotin your day-to-day would be
enrollment.
Uh, so provider screening, uh,revocations, deactivations,
things like that.
That is where you could oftenrun into program integrity.
Uh, but they could also, youcould get a uh a fraud or an
(06:12):
improper billing audit.
Um, you may also see uh programintegrity involved in the denial
of claims or the collection ofoverpayments.
Uh, program integrity is alsobehind a lot of the data mining
and audits, although many timesthey're using different types of
contractors for that duty, whichwe'll discuss in a little bit.
Um, and then also there's awhole element of education where
(06:34):
they are out there providingeducation on their websites uh
through different types of ummedia.
And then of course, you can goto uh program integrity for
different types of advisoryopinions in certain
circumstances.
Um and then the other thing Iguess you might see them get
involved in is uh relates toinformation sharing.
(06:56):
So how you're sharinginformation across programs or
how they share informationacross programs, and they can
sometimes even get involved withgroups like law enforcement.
So God forbid you ever getinvolved with a DOJ
investigation involving claims.
Oftentimes OIG will be involvedin that as well, um, especially
if the claims involve billingconcerns or billing questions.
SPEAKER_02 (07:16):
Right.
And so what we really want tofocus on um not only with the
product or strategies, but wewant to talk about the new audit
trends that we've been seeing.
And so, Ross, what are youseeing in your practice in the
space of what I think is areally interesting trend of an
increase in commercial auditsversus government payer audits?
SPEAKER_01 (07:38):
You know, it's interesting.
It's it's always a it's always apush-pull.
Like sometimes I feel like whenall of our government, sometimes
all of our calls from clientsand friends and friends seems to
be related to government issues.
You know, we're dealing with aUPIC on every front or different
types of TPEs or different typesof investigations.
And then the trend will swingand suddenly we're dealing with
(07:58):
a lot of commercial audits.
And so um, it may be because ofchange administration where some
of the government contractorsmay be a little unsure of their
position in the program.
Uh, but we're definitely in someof the big insurance plans, you
know, such as United, have seeninvestigation and scrutiny from
the government on how they'readministering these plans.
So we're seeing a lot moreactivity recently on the
(08:22):
commercial side.
Um, a lot more.
And the interesting thing aboutthis to me is that these big
commercial plans have always hadSIU, special investigation
units, or at least they've hadthem for a long time.
Um, but their methodolmethodology was more like, you
know, send a document request,send an audit, uh, maybe they'll
put you on like a prepay reviewsystem, things like that.
(08:45):
We've seen a swing where theyare getting a lot more
aggressive in reporting activityto the government agencies.
In New Jersey, especially, theylove to do that.
Uh, we've seen a lot ofinquiries that involve things
like asking for interviews.
Uh, we had one payer asked tocome on site and do a survey,
(09:08):
uh, an add-of-network payer atthat.
It's not even somebody thatwe're in contract with that we
are, you know, trying to befriends with.
It's just somebody that wewanted to get paid for.
And they tried to come on siteand you know, you know, do a
full survey of our client.
Uh we we politely declined uhthe offer and uh agreed to to to
speak and communicate in otherways.
(09:30):
But you know, their lawyer andtheir investigators assured me a
lot of people agreed to it, anduh, which I think is is wild
that because that is notsomething I feel like we saw 10
years ago.
I I mean in your practice as aas a law firm lawyer, did you
ever see commercial plans tryingto come on site?
SPEAKER_02 (09:46):
No, I honestly I I think I have seen more on site,
even in spaces you wouldn'texpect, such as the Office of
Civil Rights, which isn't ourpart here.
But you know, it's interestingthat you say that because I
really do think that's wherethis session that we're doing
today and that we did at theannual meeting is we're really
intending to provide proactivestrategies for internal folks
(10:07):
looking for this.
You know, if somebody was comingon site, I think that there's
probably a lot of providers whomay feel required, right?
SPEAKER_03 (10:18):
Yeah.
SPEAKER_02 (10:19):
And I think it's really important, you know, to
work with your payer contractingteam and get very crisp now in
the sections on information thatthey can request in the
contracts to look for languagewhere it allows them any kind of
wholesale access to your site orwholesale access to data and
making their, you know, makinghaving uh sorry, making having a
(10:41):
requirement for a good faithinquiry, uh suggesting that
you're gonna have acommunication before people just
show up.
That's really important.
And when you're educating yourteam, looking out for this so
that people are aware if theysee letters from commercial or
government payers, you know,look for that, you know, maybe
that they're having anexpectation that they're gonna
(11:02):
come on site.
So that's really interesting.
Uh, you talked about uh the newadministration, and I think that
is obviously a topic in auditsthat we're watching and have
been watching since January.
Um, I think that there wasalways very clear intentionality
from the administration thatthey intended to target fraud,
(11:24):
waste, and abuse.
Um, I do think there has been umrumors and suggestions in the
industry that, you know, maybetheir focus is completely on
diversity and other types oftopics that weren't uh targeted
for fraud and abuse from prioradministrations.
But, you know, I still thinkthat even though we're eight
(11:44):
months in, that uh I'm notseeing anything incredibly
unusual other than thecommunication from the
government is that they're stillinterested in it.
But I don't think I've seeneither a big increase or
decrease in what thegovernment's doing other than
normal.
Um what are you saying, Ross?
SPEAKER_01 (12:05):
Yeah, certainly not on the Medicare uh or Medicaid,
you know, certainly not on theclaim audit side.
I know that some of my DOJpartners would tell you that
they're seeing a lot more um,you know, personal
investigations and things likethat on the criminal side or
individual investigations, buton the audit side, especially by
the audit contractors or the orthe typical audit agencies like
(12:25):
the IG, I don't feel like we'veseen any increase.
No, I agree with that.
Um, I think that's why sometimesit feels like the commercial
plans are taking up the gapwhere they're stepping in.
Maybe they're doing more, maybethey feel like they need to do
more to justify the governmentcontracts they have, or even on
just straight commercial planes,play uh claims, they are
investigating more.
(12:47):
Um you were touching onsomething interesting there,
which we'll I think we talk alittle bit about further.
But you know, I I know peoplealways love to hear about what
how you advise and uh yourclients within the company,
within the system, to beprepared for audits.
And, you know, talking aboutgee, I never heard of people
(13:08):
coming on site, but some peoplelet it happen.
I've 100% had clients wheresomebody, some well-meaning
person at the front desk didn'tunderstand what was going on,
thought they had to let peoplein.
And next thing you know, they'rerifling around the office,
looking in filing cabinets,things like that.
That later, when compliance orlegal got involved, you realize
they probably didn't have aright to do that, or at least it
was not an articulated right.
(13:29):
And somebody should at the veryleast ask them to step back,
take a breath, and call somebodyin compliance or legal who could
advise as to what the ruleswould be for that type of
investigation.
SPEAKER_02 (13:40):
Absolutely.
I mean, obviously, a lot of usin the provider space work with
really well-intended,mission-oriented frontline staff
who are about providing healthcare in their often small
communities.
So it could easily be someonethat they know or they're just
very kind.
And so, you know, I'm having uhnot a struggle, but we're always
(14:02):
having the focus that customerservice and good customer
service is great, but just likeyou don't want a cyber criminal
getting into your data becauseof your, you know, graciousness
to external parties, you know,you have to ask more questions,
I think, for people who areasking for access or data.
And and that's tough for peoplewho their normal everyday is
(14:25):
being very open, caring, youknow, people.
SPEAKER_01 (14:29):
That's right.
Yeah.
So how do you prefer?
I know you haven't been inWellspan that long, but uh, you
know, how how do you in an idealworld advise your your you know
client bodies or client agencieswithin your system?
How do you uh prepare them foraudits out of curiosity?
SPEAKER_02 (14:46):
You know, I think that it it really you have to
know who your stakeholders are,and we'll talk at our proactive
strategies about identifyingthose stakeholders.
But I always, as legal counsel,try to have a very open and you
know, feedback loop conversationwith compliance, internal audit,
revenue cycle, payercontracting, and others about
(15:08):
making sure that all the teamsare feedback looping to each
other the information you need.
Who are we in payer contractingefforts with when your contract
is open for negotiation?
What are we seeing in sort ofthe low level onesie twos denial
space that could grow?
You know, obviously uh it alwaysused to be things about
(15:30):
inpatient versus uh outpatientclaims.
If people were put in patienthospitals, you know, those are
the types of things thateverybody knows about to look
for.
But now, you know, as we keepgoing with our audit things
we're seeing new, I do needpeople, and I say this even in
the HIPAA space, like we have tohave a little bit more suspicion
(15:54):
of everybody who's asking usthings, right?
Right.
Like where you ask people topause when they look at emails
before they click download.
You know, I need everybody to dothat same kind of scrutiny and
hygiene in their verbalinteractions or phone
interactions.
So that's what we're talkingabout is just telling people to
(16:14):
take a pause.
You know, if you see something,say something.
SPEAKER_01 (16:19):
Yeah.
It's funny.
Um it's a podcast, right?
We're casual here.
Uh, you know, I picture myselfon the on the uh on the big
couch with Travis Kelsey and theother Kelsey uh talking.
Uh Kelsey.
Listen, if you if you announcean album drop right now, I'm
gonna be I'm gonna freak out.
Um the uh anyway, uh I I wasgiving this speech at the at
(16:43):
another hospital association uha few years ago, and the and I
always think of this storybecause it's so like indicative
of of exactly what you'retalking about, the kind of
people that let them in thedoor.
But this this uh complianceofficer from a small health
system that had multiple uhfacilities around like a very
rural area of Georgia told astory that she got a call from
(17:05):
someone who the this guy hadrolled up literally in an RV and
stepped out of the RV in frontof the facility, walked in, and
started demanding records.
Now, luckily, these people weresmart enough to call their
compliance department who whosaid, Hey, who is he?
Does he have a card?
Does he has he brought a pieceof paper?
Is he explaining who he is?
Let me talk to him.
(17:26):
Um, but as she's telling thestory, this woman from the back
of the room, who obviouslydidn't know her, stood up and
goes, I know him.
That happened to us.
And so apparently that you knowthere's this guy, just the
scourge of the uh the ruralhealth systems in Georgia at
least a few years ago, drivingaround.
They said he looked like he'dbeen in the woods for you know a
hundred days.
He's you know not professionalin the professional attire
(17:47):
whatsoever, bringing out somekind of weird ID.
And he really was from anagency, but he, you know, yeah,
he probably stuffed come fromthe pig jig, you know.
Right, right, yeah, from the bigpig jig.
Diana.
Um all right, we'll do thebarbecue cod podcast next.
But um, no, it's a great, it's agreat point about keeping making
(18:09):
sure people are trained to askwhy.
And luckily this group wastrained, and they they said,
gee, this this is there'ssomething odd here.
You know, he doesn't seem like atypical, you know, Georgia
surveyor or you know, governmentsurveyor.
There's something very strangegoing on.
Um, so um we're a little bit offtopic there, but you know,
there's a lot of other audittrends we're seeing.
(18:30):
I think I mentioned a momentago, um in you know, something
like the DOJ's investigationinto United Healthcare on their
administration of plans, I thinkis gonna cause a lot more
trickle-down scrutiny.
And the other plans as well,even besides United, who are
all, I'm sure, in a positionwhere they feel like their
programs are also subject toscrutiny, they're gonna pass
that down to the providers.
You're gonna see more inquiries,you're gonna see more demands
(18:52):
for documentation, you're gonnasee more prepay audits, you're
gonna see a lot more of that uhfrom them, uh, from these big
plans because they're afraid oftheir own scrutiny.
SPEAKER_02 (19:00):
Um seeing that, right, in the scrutiny from
commercials for the collectingco-pays, seeing a lot of plus
for documentation about effortsto collect co-pays or
deductibles for patients.
I think we're also seeing thecommercial payers doing what I
would consider almost intrusiveaudits for out-of-network
providers, as you mentioned, youknow, where they came, right?
(19:22):
You know, working around thestate prompt pay statute and
seeking additionaldocumentation.
And uh you and I both talkedabout it at AHLA annual meeting
in San Diego, that I had uhpayers requiring corruptive
action plans on out-of-networkproviders before they would
resolve anything.
And you know, honestly, it wasalmost aggressive the CMEs that
(19:46):
they were making doctors take,which we, you know, in another
lifetime pushed back on and saidthat we didn't think they had
the ability to do it.
But that does go back to, Ithink, really nailing down with
your payer contracting whatyou're seeing in the contracts.
SPEAKER_01 (19:59):
Uh yeah, you know, I've had that situation.
Oh, sorry, go on.
SPEAKER_03 (20:03):
Oh, go ahead.
SPEAKER_01 (20:04):
I was saying we've had that situation at least
twice that I can think ofrecently, where incredibly an
atom network payer is demandinga corrective action plan from
our client.
Uh now, but what they have isthey have their money in
suspension, essentially.
Uh they call it payment flag,but it's the same.
It's the same as a paymentsuspension where they are
processing claims and mostlyapproving these claims, but
(20:27):
they're refusing to pay you, uh,or in some cases they refuse to
fully process them until youresolve some other audit issue
with them.
It's the only, it's the onlyhook they have.
Now, it doesn't work in everyevery state.
Some states have prompt pay lawsthat um prevent this type of
behavior, but in states whereit's allowed, um, it's been
extremely burdensome.
And they're handing down thesecorrective action plans that are
(20:49):
they almost look like contracts,but without the benefits.
Uh, you have all the obligationsof being under contract, but you
don't have the guarantee ofpayment.
Um, it's it's it's veryinteresting.
And, you know, some people havesigned them uh because they need
that money badly and they'rewilling to do it, and other
people haven't.
Um, but it's definitely a newtactic.
It's not something I I wouldhave been sitting here telling
(21:11):
you about having seen before twoyears ago.
SPEAKER_02 (21:15):
No, and I think you know, the next gen of all of
this is artificial intelligence,right?
And it's everybody's excitedabout what you can and can't use
it for in the health system.
Um obviously, what we werelooking at is Epic and
Microsoft, the things that wecan use with our Outlook tools
and Epic.
But, you know, I have been veryinterested and have wondered how
(21:38):
much artificial intelligence isbeing used by payers and
government payers across thecountry and what they're doing
for denials.
SPEAKER_01 (21:45):
Right.
So that's we've had a hugeconcern about that for a long
time.
And we've seen a lot of evidencein it and in different types of
audits and disputes we havegoing on, especially with some
big commercial payers.
And so talking earlier, right,about that what is a complex
review?
A complex review means it shouldbe reviewed by a professional, a
human professional.
So that's a doctor, that's athat's a nurse, maybe it's a
(22:07):
therapist, depending on the typeof claims, but an actual human.
And we have we have definitelyfound evidence, and in fact,
we're uh, you know, there's somelitigation over it, uh, related
to some of these plans, clearlyusing AI.
Um, in situations where they wethink these complex reviews
should have been conducted byhumans.
And um, and it's it'sinteresting.
(22:28):
We're only going to see more ofit.
And and frankly, maybe they'regonna get better at it, and
that'll be even harder toidentify.
But I think that using AI in asituation that is uh written and
intended to be done with a humancompassion and a human sort of
uh intelligence for variation orexceptions and things like that
is an abuse.
(22:48):
It's an abuse of their of theirpower and perhaps an abuse of
their uh responsibility tomanage money on behalf of the
government or at the very leaston behalf of their members.
SPEAKER_02 (22:58):
You know, it's interesting if you've been
watching the TikTok videos abouteverybody who's been filming
their peer-to-peerconversations, the doctors
who've been filming theirpeer-to-peer conversations uh
with the various payers, I thinkthey would tell you that they're
already artificial intelligenceon the other side of the phone,
right?
Because they won't do, yeah.
They won't tell you anything.
And so it has been interestingthat you're expected as a
(23:22):
provider to not use artificialintelligence to do anything that
you're expected to do to file aclaim.
So you would have the sameexpectation on the other side.
But I know that we are only atthe genesis of what we're gonna
see in these types of audits forthat.
SPEAKER_01 (23:39):
That's right.
I mean, in the same breath,they'll they'll accuse you of
using electronic signatures orthings like that.
You know, and I'm like, wait aminute, you used a robot to
review the medical necessitybehind a heart surgery.
You're on me for you know,electric electrically signing or
electronically signing uh anorder.
Um yeah, it's interesting.
Um the other thing we're seeingthat isn't going away is the
(24:03):
TPEs, uh the target probe andeducate.
And I love I actually I say thisall the time, and people act
like I'm crazy, but I actuallylove a TPE audit um because it's
one of the few types of auditsthat I can think of where you
have a constant conversationwith the payer about what they
(24:23):
expect.
And usually it's Medicare,right?
It's Medicare math.
And so what this so a TPE isthere's multiple levels and
they're scary and they ask for alot of documents, and everybody
kind of freaks out at first.
Um, and if you fail that firstround, then it you ever
everybody really gets worried.
But then you have the secondround and the third round, and
on that by usually by the thirdround, people are getting the
(24:44):
documentation right.
Many times they found someonegood at the Mac who they can
call with a question and say,hey, gee, we're confused by
this, or is this okay?
Should we not do this next time?
Things like that.
And I've actually been veryimpressed with the TPE process,
even though everybody complainsabout how onerous they are and
how much work they are, and theyare.
(25:05):
Um, but I have been veryimpressed with that program in
general.
Um, you know, you pick, theycome in, they you know, they
look at 100 claims, they theyextrapolate out to the to the
ends of the universe, literally,and uh, you know, suddenly you
know$100,000 worth of claims isworth you know$10 million worth
(25:25):
of claims, and they wanteverything back, and there's no
explanation.
They just, you know, they send astatistical report that most
statisticians are completelyconfused by.
Um, they deny a few claims gotbased on you know various
reasons, and then they send itback to the Mac.
They issue an overcame anddemand, and you don't you don't
talk to a human ever on those.
Maybe it's an ALJ, someone willshow up.
(25:46):
Um the TP I totally agree.
SPEAKER_02 (25:49):
The TPE audits were definitely and are definitely,
if you can have a favorite, myfavorite.
Uh, I always compare it to Iknow that you know, one of my
first in-house roles, I came inon the front end of a corporate
integrity agreement.
And I know that everybody feelsvery challenged by that because
it's reputational and otherwise,but frankly, it was a it was a
(26:10):
wonderful experience for us forthe years that we had it,
because I had a shout-out toAmanda Copsey, uh, an OIG
monitor, who was my on-call,just like in the targeted probe
and educate.
You know, you can learn so muchfrom having a phone
conversation, you can learn somuch from each other.
And they listen in the TPEaudits just like our OIG monitor
(26:32):
listened to us.
And so I, you know, again, we'regonna talk in our project
strategies about take full, youknow, take full effort of these
opportunities that you have toget this information so that you
are giving them what they want,right?
And so I absolutely think it'swell worth it to take every
advantage when you have someoneon the phone who will talk to
(26:52):
you.
SPEAKER_01 (26:53):
No, I think that's funny you you mentioned the CIAs
because you know, we actuallyhave, I don't really, obviously,
I'm not a deal lawyer, I'm alitigator, but I I will
occasionally advise on thesetypes of issues for deals.
And it's amazing now we actuallyhave you know private equity
clients and other folks who lovea good CIA.
I mean, they don't love goingthrough the process, they don't
love the repaying it.
But you know, if they see anentity with a CIA, they're
they're like, oh, that's great.
(27:13):
That's you know, sometimes thatcan be a mark of of uh of
approval, you know, a mark ofquality.
Um so it's it's interesting, youknow.
That's and that's exactly theright viewpoint you should have.
Now, it doesn't mean it's a it'sa full get out of jail free card
on every issue that they have,but at least on the issue of the
CIA, you can you can presumethat they should be um in good
shape there.
SPEAKER_03 (27:32):
Absolutely.
SPEAKER_01 (27:33):
Well speaking of nasty audits, I already touched
on them a little bit, but thethe UPIC audits, and these are
still out there, they're stilljust as painful as they've
always been.
This is uniform programintegrity contractors.
Um, there are still severalacross the country, but the ones
you see are Safeguard and CoventBridge.
Um, if you haven't had an auditin a while, you may remember
these as ZPICs, uh, but theychanged the name on them a few
(27:56):
years ago.
Very much the same thing.
See them a lot in Medicare PartA, but um, we see them the most,
frankly, in Diddy Post, DEME,um, prosthetics, and orthotics,
although that you can see themin other circumstances than we
have.
We see them for ambulance andhospice and other areas as well.
A lot of home health.
Um UPICs are particularly nastybecause they're outside
(28:17):
contractors, they're outsidecontractors even from the Mac.
So, you know, if Palmetto isyour Mac, then they still use
Covent Grids or Safeguard.
Um, and they the hard thingabout a UPIC is if it's bad
enough, they'll put you onpayment suspension.
And the suspensions are very,very uh difficult because they
they suspend all claims.
(28:38):
So even if they're justconcerned with a certain type of
claim, everything is suspendeduntil the audit is resolved.
And they should technically beresolved in 90 days, but if
there's any allegation orconcern of fraud, they can
extend it almost indefinitely.
So we've seen UPEX go on foryears where there's an
allegation of fraud.
They just keep re-epping thesuspension, which as you can
(28:58):
imagine, is an absolute companykiller in those circumstances.
Um, and so they can do thingslike on-site reviews.
We have seen it.
We have seen them even try tointerview patients, which is
incredible to me.
Uh, I had in a hospice contextone time.
I was just trying to picturethat interview, Lindsay.
Like, hi, Miss Lonergan, are youreally dying?
(29:18):
I can't even imagine what thatmust have been like for the
people who had to sit throughthat.
But um, they can and they will,although thankfully it's rare.
Um, but these are definitely thehardest kind of audit you'll
deal with.
And as I already touched on,unlike the TPE or even to some
degree an OIG audit, you're nothaving a conversation with a
(29:39):
human.
You are uh you're boxing uprecords, sending them out,
hoping for the best, and thenyou get a big report, and that's
it.
Um, the report will likely use astatistical tripolation from
someone who's completelyseparate than the reviewer.
Um, you'll have to hire your ownstatistician to make sense of
it.
And most of the time they don'tmake sense.
Um, but if you do.
(30:00):
Get one of those, I highlyencourage you to review your
program integrity manual and tohire someone or find someone who
understands statistics very wellbecause they are often done
wrong, even today.
Uh, and they can be fought, butit's a big process.
It's multiple levels of appeal.
Usually don't get a lot oftraction on those until the ALJ,
(30:21):
and they're just really onerousprocess.
Um, the other really nasty thingabout a UPIC that I've seen
before is that they can also bereferred, they will sometimes be
referred to the DOJ.
So you don't just deal with theUPIC, um, then you could also be
dealing with the Department ofJustice, US attorney, who then
has to kick the tires on thisUPIC investigation and figure
out if it's something that needsto become a full-blown DOJ
(30:43):
investigation.
So very difficult.
SPEAKER_02 (30:47):
So I think we're gonna move, you know, to um
returning overpayments, andwe're gonna hit briefly on the
60-day rule.
Um I do want to go back and saylawyers don't do math, so you
should always hire astatistician.
Uh, none of us went to lawschool to do math, right?
Um, in terms of 60-day, again, Ithink everybody understands what
the 60-day rule from theoriginal Affordable Care Act
(31:09):
requires.
But, you know, the top the bignews is in the calendar year
2025 Medicare Physician feeschedule, CMS updated the 60-day
rule to change the definition ofan identified overpayment to
when a provider knowinglyreceives or retains an
overpayment.
The term knowingly has themeaning that's set forth, as we
know, in the Federal Civil FalseClaims Act, which provides that
(31:32):
a provider knowingly receives orretains an overpayment when they
one know about the overpayment,two, act with deliberate
indifference to whether anoverpayment exists, or three,
act with reckless disregard of apotential overpayment.
Most importantly, under the newrule, a provider does not need
to quantify the provideroverpayment for it to be
(31:53):
considered identified.
Uh finally, the updated ruletweaked the time frames.
Obviously, it's always said thatthere was a 60-day deadline, um,
but you can have it suspendedfor 180 days when you're doing a
good faith investigation.
But crucially unchanged is thatoverpayments must be reported if
identified within the six-yearlook back period.
(32:14):
Um, making sure that yourinternal audit or investigation,
if you're doing a 60-day rule,you know, you have to think
critically about when did theimpact change that created the
potential overpayment, and isthere any reasonable belief that
it goes back six years?
You know, I again I'm not gonnahit this too hard because I
really think that for most of usthat are especially in the weeds
(32:38):
of this, we don't think the rulehas changed at all.
Uh for my part, right?
SPEAKER_01 (32:42):
You know, it doesn't it definitely doesn't change it
in practice.
Like the way we advise clientsto to really comply with this is
it's not changing the way thatour clients are doing it.
SPEAKER_02 (32:51):
It's not.
And you know, to me, if you havepeople who are really leaning
hard into the six months, youknow, you want to make sure, and
what I've always done, butperhaps weren't done, is you
want to be able to demonstratein proof that you are making,
you know, a good faith forwardeffort throughout the six
(33:12):
months.
Um, I think that sitting becauseyour executive is thinking about
it while they're on vacation fortwo months is not great.
But many people uh information,also you, you know, there were
people who could argue, maybeeven me, uh made an argument
that, you know, if you held thebutton on the equals on your
(33:35):
calculator until you were readyto do it.
But I think it's if you're, youknow, people who are acting
reasonably, acting in good faithas we all should, there's really
nothing to the 60-day rule thathas changed.
I think it's just demonstratingthat you need to show that good
faith effort the whole time.
SPEAKER_01 (33:53):
You know, I always think of when I when I get
worried about potentialenforcement or that a client's
taking too long, I think of someof the enforcement cases.
And, you know, one of the bigones that was out there
initially was a group that, youknow, paid back a relatively low
amount over multiple years.
Um, they would just kind of likethey sort of slow rolled this
audit over like two or threeyears.
(34:15):
I think it was like New YorkMedicaid or something like that.
And you know, they just really,really took way too much of
their sweet time on it.
And which, of course, you know,you're not gonna let your client
do.
So we we try to keep them withinthat six months.
And and like I said, if it's asmall amount or if it's a it's
an easily identifiable amount,we remind them that six months
is not a guarantee.
If you know today exactly howmuch you were overpaid, we don't
(34:38):
need to look it up.
Uh we don't need to figureanything else out with it, then
you don't get that six months.
SPEAKER_02 (34:44):
Absolutely.
You know, and I think um youhave to always think about the
impact of what does thatoverpayment mean, right?
You know, you you should takethink carefully that when you
return an overpayment, you areindicating back to the
government that that was not aproper service or a billable
(35:05):
service or a medicallynecessary, whatever it is.
And so you do have to becritically thinking about what's
the impact on other claims,because post Escobar, obviously,
uh, and Escar, the Supreme Courtcase that talked about, you
know, what's material to thegovernment for repayment.
If you are actively proactivelyreturning that money, you are
(35:26):
telling them that you think it'smaterial to the government.
And so that is where I doencourage everybody to think
critically as a group and makesure you have a
multidisciplinary stakeholdergroup determining what those
overpayments are, because youdon't want overpayments being
returned in one area and notanother just because those
people didn't talk to eachother.
SPEAKER_01 (35:45):
Yep.
Oh yeah, gosh, that's a goodpoint.
SPEAKER_02 (35:48):
Yeah, and I do think, you know, Escobar is so
interesting.
Uh proactively, myrecommendation always is to be
very knowledgeable about whatyour local district court says
because those are the people whowant it, and being very
knowledgeable about what yourcompany has done in the
overpayment space for the lastsix years and going through
that.
Um, and as we get into proactivestrategies, we'll talk about
(36:11):
that.
SPEAKER_01 (36:12):
Yep, I like that.
SPEAKER_02 (36:14):
So, thinking of our time here and we want to keep
our people engaged, I do thinkgoing into proactive strategies
is the best.
So, you know, number one, uh, asI've said, is you have to have
an audit response team.
You can call it Bob's team ifyou want, but I think it's
really important for theorganization, you know, to have
strong processes and policiesrelated to its response to
(36:36):
overpayment.
It's typical that I go into ajob and that people are somewhat
aligned, but I think again, thepoint about what does an
overpayment mean to thegovernment and you returning it
is not something everybodythinks about.
So revenue cycle, internalaudit, compliance, quality
clinical review, and finance.
You want all of those peoplecommunicating with each other so
(36:58):
that you know what's going on,and that your organization's
response and identification ofan overpayment is driven by your
organization's policies andprocedures, right?
Especially those that addressrisk tolerance.
You know, uh, we could spendanother after we do our barbecue
uh podcast.
SPEAKER_01 (37:18):
Our barbecue podcast.
SPEAKER_02 (37:19):
Right.
We could do a podcast aboutlocal.
SPEAKER_01 (37:22):
We can put our barbecue sauces in front of our
screen like they do, and be likebe like, listen, when you get a
TPE on it, finish your barbecue,and then uh call back to eat
your barbecue before you givepeople access to your records.
That's right.
Invite your reviewer over, havea barbecue.
SPEAKER_02 (37:40):
Um I think it's important, you know, to uh maybe
we could test barbecue sauceswhile talking about low for
bright.
You know, we don't know aboutthe low for bright regulatory
review, what that will have.
But again, there's so manynuances to what's an
overpayment, what's your risktolerance is, what it means for
the organization.
100%.
(38:00):
You have to have thoseconversations um internally
before anybody can ever help youexternally, right?
SPEAKER_01 (38:09):
Agreed.
And and you need to decide,yeah, there's nothing more, and
as an outside lawyer, there'snothing more awkward for us than
when we get a call from a clientand they're trying to explain
the situation and they startarguing with each other.
And this happens all the time,where you know, well, we we we
think we have this big issue.
Here's what happened.
Well, I don't think that's theissue, Susan.
(38:31):
I think it's really this.
And like, you know, well, how dowe do it over here?
Well, in my department, beforewhen we had something like this,
we we didn't refund it.
And here's how we justified it.
And this other group said, oh myGod, are you kidding?
You didn't refund that.
We have to refund that in thisnow, you know, and we've seen
that before.
So you're you're 100% right.
Like getting everybody on thesame page as to risk tolerance
(38:51):
for audits and risk tolerancefor overpayments and things like
that is so important.
And unfortunately, it's notalways something that your
outside lawyers can do for you.
SPEAKER_02 (39:00):
No, and I think obviously as organizations ebb
and flow, um and we're havingthe struggles in academic
medicine, you don't want peopleto feel uncomfortable in
conversations that you'reinvading their lane, right?
But I think that the lawyers canbring forth that there is
(39:20):
judgment calls that have to bemade, and the judgment calls
need to be backed up withconsistency because an
inconsistent judgment over andover is the death knell, right?
I think that that's most or youknow, most explained in you know
what I deal with is unprivilegedinvestigation documents, right?
(39:43):
And if you look at those oversix years, you have everybody's
stamp, their flavor, their youknow, where they worked and what
their you know beliefs are.
SPEAKER_01 (39:53):
I heard my friend, the consultant over here, they
looked at it, they never engagedthrough counsel, probably not
even privileged or questionablyprivileged.
Um yeah, I mean, a role we dostep into a lot as a firm.
And it it takes a lot of thoughtand manpower when we do this,
but we do occasionally are askedto step in and say, okay, look,
(40:14):
we've got two competingarguments here in the
organization as to what weshould do with this tranche.
And we need you, don't, youknow, they almost we almost
become like an arbitrator uh ofa decision here.
So, you know, you've got Lindsayand her camp, and they're
concerned about this, and here'swhy.
You've got this other camp overhere, they're also concerned,
(40:35):
but they have a different um,you know, they have different
take on how much of an issue itis.
And, you know, what do youthink, Paul Tanelli?
What do you think as a firm?
And as a firm, we have a lot ofwork on that.
Because I that's not somethingRoss needs to answer on on the
fly on his own.
I need to talk to my partnersand say, hey, partners in
Denver, partners in Dallas, howhow do we answer this question?
(40:58):
Because God forbid, I don't wantyou calling me and getting a
different answer than you gotfrom my partner in Denver.
Um, because you know, we needto, we all need to be on the
same page with these things.
There's nothing worse thansomebody, you know, getting a
different opinion from adifferent person at your firm,
and then you have to resolve thetwo.
So um I think internally andexternally, that needs to be
(41:19):
those conversations need to behad.
SPEAKER_02 (41:20):
Absolutely.
And so ultimately the takeawayin this uh strategy is don't let
the UPIC be the reason you meetfor the first time.
Because before it happens, havea strategic audit response team
that has already dealt with thetough questions before you have
to.
And you know, that's tough whenpeople have day jobs, but
(41:42):
ultimately uh it's so important.
SPEAKER_03 (41:45):
That's a great point.
SPEAKER_02 (41:46):
Yeah, I think second, and also you know,
ancillary to this is that auditresponse team needs to see what
internal resources you have torespond to an audit so that you
know what external resources youneed.
And frankly, this is a spectrumas well, right?
Again, don't let the UPIC be thereason that you find out that
(42:08):
Bobby Sue is a great hospicerecord reviewer.
You know, the audit responseteam needs to inventory your
resources, including youremployees, to see what's
available clinical or otherwise.
And you have that becausethey're doing the onesie twosies
now.
But I think you know, this iswhere external and internal
(42:28):
counsel can work together tobuild some internal proficiency
that pays dividends.
It doesn't mean you don't useexternal counsel again.
It doesn't mean you don't haveto go through the painful first
two weeks of saying, What ishere?
SPEAKER_01 (42:42):
When I'm asking you for all these documents, you're
like, if that guy emails me onemore time asking for something,
I'm gonna lose my mind.
Yeah.
No, unfortunately, we have to bethat guy a lot.
No, I'm always a little proud,I'm always kind of proud,
actually, when a client, whenwe've been through an audit or
two and an appeal or twotogether, and then I get a call
six months later and they say,Hey, we got another audit, but
this time, you know, we did itourselves and we did these cover
(43:05):
sheets.
We did, you know, we preparedthe documentation this way, and
you know, we did pretty well atthe first level, but now we need
your help.
And I'm always like kind of likea proud parent where I'm like,
oh, okay, so we all we alllearned something together.
You guys handle that one on yourown, you don't need to pay me,
and I don't have to babysit andask for every document and
creation.
Um, and now I get to come in forthe fun part at the hearing or
(43:26):
or take on the really hard oneswhere nobody's listening to you.
Um, and and you can handle thatother part.
That that's ideal.
I I I think of that as a win inmy practice.
SPEAKER_02 (43:34):
And I think you and I, right, when my left the law
firm and you came in, we learnedthat together.
We had a very simple audit thatwas no more than$10,000 about an
inpatient case.
And we had an external resourcebecause for me, putting an
external clinical reviewer orstatistician or physician
reviewer on a stand of any typeis a risk.
(43:57):
I have had it go verythoroughly, where they did great
when you were prepping them andthen they fell apart on the
stand versus like long-standingindividuals in your organization
building that expertise paysdividends, and they have the
ability to pivot with internalinformation and resources in a
(44:19):
way.
And again, shout out to KimWhitley if she's listening.
You know, you and I had thatexperience where you and she
were able to have a just reallyexcellent ALJ experience in
Georgia.
So that was such a great exampleof where you get external
resources.
And third strategy, educatingemployees about when you see a
government letter, do something.
SPEAKER_03 (44:40):
Yeah.
SPEAKER_02 (44:41):
Ultimately, that is another opportunity of internal
education, is where failure torespond is not good enough.
So absolutely, you want an auditresponse team so that people
know where things are supposedto go.
Yeah.
SPEAKER_01 (44:55):
What do you think, right?
Like if the guy rolls up in anRV, uh, he's not bringing you
barbecue sauce, then you need toyou need to question what is is
is he really there legitimately?
Um, but that's part of a goodresponse plan.
Yeah, gee, this is weird.
This smells odd to me.
I'm gonna call Lindsay and findout what I should do here.
SPEAKER_02 (45:16):
Um absolutely.
And then the audit responseteam, again, another strategy is
making sure you fullyparticipate and defend all
denials.
Again, that one is even a$10,000claim can cause you problems.
And that's true for everything.
Every letter that comes inmatters, and every denial
matters.
Because if you let the denialgo, you have implicitly told the
(45:38):
government that was a claim thatshouldn't have been sent out.
SPEAKER_01 (45:42):
That's always my concern.
Yeah.
I mean, especially if it's aquote, if it's a I always tell
people this if it's a one-offmedical necessity issue or
documentation issue, and we'renot going to get the
documentation from the doctor orwhoever, it's impossible.
Maybe you let it go.
Um, but if it's a systemicissue, if this is how we've
documented these, or this is howwe've done this for a long time,
(46:05):
then you can't let one or twogo.
Um, because it it does, it doesbegin to feel like precedent.
And um plus I always feel likeit's it's like blood in the
water for the sharks, right?
Where they they suddenly feellike, oh gee, you know, if we we
just you know saber rattle alittle bit at this client, this
hospital or this thisphysician's office, whatever it
is, then we'll get a refund.
(46:27):
So, and I I feel like sometimesyou have to push back um in
order to get them to back off.
SPEAKER_02 (46:33):
You know, we could go on and on about this at our
barbecue podcast, butultimately, you know, these
things are in closing are thatthis is a complex audits, gray
law, but you have theopportunity with your external
counsel to have a strategicapproach to how you
operationalize audits.
While they differ in scope andfocus, everything has a common
(46:56):
thread of needing accuratedocumentation, clear billing
practice, and an establishedresponse protocol.
Proactively preparing isabsolutely so much value for
your money.
SPEAKER_01 (47:10):
So, what you're saying is, Lindsay, you think we
need to do uh this presentationagain at the annual meeting next
summer?
SPEAKER_02 (47:16):
Absolutely.
We absolutely will want to seeyou in New York.
It's the first time AHLA will bein New York since 2014.
So we hope that you'll join usthere and we will bring our
barbecue sauces and we'll bringit to New York City.
We appreciate everybody joiningus today.
Thanks y'all.
(47:36):
Thank you.
SPEAKER_00 (47:42):
If you enjoyed this episode, be sure to subscribe to
AHLA Speaking of Health Lawwherever you get your podcasts.
For more information about AHLAand the educational resources
available to the health lawcommunity, visit AmericanHealth
Law.org and stay updated onbreaking healthcare industry
news from the major mediaoutlets with AHLA's Health Law
Daily Podcast, exclusively forAHLA comprehensive members.
(48:05):
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For more information, visitAmericanHealthlaw.org.
SPEAKER_01 (00:17):
Hello and welcome to Know Your Audit, Operational
Considerations for Every Kind ofAudit.
Welcome.
I'm Ross Burris.
I'm a shareholder at Pulsanelliin Atlanta, focusing in the
areas of reimbursement auditsand disputes.
I'm joined by my friend LindsayLaunergan, Senior Associate
Counsel at Wellspan Health.
(00:38):
This is a repeat to some degreeof a presentation we did at the
Age LA annual meeting this yearin San Diego.
Lindsay, you want to say hi?
SPEAKER_02 (00:49):
Hey, it's we're so thankful everybody's joining us,
and we're happy to have theopportunity to do this topic
again.
SPEAKER_01 (00:56):
That's right.
Yeah, when we did thisoriginally, it's a um a very
interactive uh discussion.
We had a lot of uh friends inthe audience who participated,
and I think, well, wetechnically bribed a lot of them
with candy and prizes, but uhthey they definitely
participated and uh regardlessof how we got there, and so it's
gonna be a little funny today.
It's gonna be just me and youchatting.
(01:17):
Uh, we also obviously won't haveslides, but we're gonna we're
gonna chat anyway and hopefullyshare some good information and
um enjoy what is my secondpodcast, your first podcast,
right?
SPEAKER_02 (01:29):
Yes, and so we are very appreciative for everybody
giving me grace as we go throughtoday, and hopefully this will
go well.
SPEAKER_01 (01:36):
Right.
I know.
I mean, I feel like we're gonnado like a true video style
podcast.
We should be on couches, youknow, promoting energy drinks or
whatever.
We're uh wearing a big hat withmy company logo on it, but I
guess we'll just have to settlefor the virtual backgrounds
today.
SPEAKER_02 (01:51):
Yeah, I think we've missed an opportunity to have
liquid death water.
SPEAKER_01 (01:55):
That's right.
Yeah, liquid death is oursponsor.
Um, some kind of new tequila orwhatever.
Well, uh, listen, let's startoff talking about the CMS claim
review programs because I thinkit's always important to know
the basic framework of audits.
And obviously, this discussionis gonna focus a lot on
government payers, uh, Medicare,Medicaid specifically.
(02:15):
And then I think we're gonnatalk a little bit about some
audit trends we're seeing in thecommercial space as well.
Um, now, as I mentioned, I'm alaw firm lawyer.
I've been a law firm lawyer mostof my career, except a very
brief start in government.
Uh and so obviously I'm on theoutside advising clients a lot
on these issues.
And typically they don't callthe law firm until the audit has
(02:37):
gotten messy or they've alreadygotten the overpayment demand or
they've already gotten theinvestigation.
Lindsay, you have the advantageof having been in-house counsel
uh and obviously been in a lawfirm before where you did the
same kind of work at the lawfirm with me many years ago, and
now you do it in-house, right?
SPEAKER_02 (02:54):
Absolutely.
I've been now in-house foralmost 10 years.
So I think it's a reallycompatible relationship.
And I think that's the practicalstrategies that we can bring to
everybody on the podcast todayis that what I can offer is what
we as internal counsel should belooking for and how we work with
Revenue Cycle and otherdepartments.
And then when we bring in ourexpert outside counsel, um, you
(03:17):
know, not only to help us dobetter internally, but to get
the successful outcomes in theaudits we get.
SPEAKER_01 (03:23):
That's right.
Um, so let's talk about thedifferent types of claim CMS
claim review programs.
And as I'm sure everyone whowould listen to a podcast like
this is aware, the governmentreimbursement operates on a pay
and chase model, meaning likemeaning they will pay you, uh,
but then they might come backfor it later.
They might chase you down andget your money.
Uh, and so there's two typicaltypes of audit claim review
(03:45):
programs we see for CMS, whichis a prepayment review to reduce
improper payments, and then apost-payment review to recover
improper payments.
So prepays would mean they'renot going to pay you until you
submit additional documents orhave some type of discussion.
And then a post-pay review willbe when they come back months,
(04:05):
maybe sometimes years later, andask for documentation related to
claims that have already beenpaid.
And if you cannot providedocumentation to their
satisfaction, you could befacing an overpayment demand.
Um, these programs are typicallycategorized as either complex,
and complex means it's going toneed a licensed professional to
review documentation.
(04:26):
Licensed professional,obviously, in this case, would
be some type of medicalprofessional.
Uh, could be a nurse, could be adoctor, or someone in between,
sometimes uh different types oftherapists, or a non-complex
review.
And a non-complex program istypically looking for things
like specific documentation.
Do you have a delivery slip?
Do you have an order?
Um, they're not looking atmedical necessity or questions
(04:48):
of whether the care wasprovided.
It's more a question of do youhave all the right signatures
and all the right dates and allthe right documentation?
Um do you want to talk aboutclaim denial determination or do
you want me to keep talking?
SPEAKER_02 (05:02):
No, I will take over, give the listeners a
break.
Umials, obviously, you know,it's our expectation that the
people listening um to this,like we did uh in San Diego,
this was an advanced session.
And so, you know, I think thatthe people who are listening to
us are all the very, you know,heavyweight who've been doing
(05:23):
this a long time, folks.
So claim denials ultimately,we're gonna go through quickly,
you know, it's that it's eithera cover, not a covered benefit,
that the item or service isstatutorily excluded, that it's
not reasonably necessary, or itdoesn't meet other requirements
governed by policy, you know,like national coverage
determinations or local coveragedeterminations.
(05:44):
Um, and then Ross, tell me alittle bit about you know what
program integrity is focusing onat CMS.
SPEAKER_01 (05:51):
So program integrity is typically focused on where
where you see them come up a lotin your day-to-day would be
enrollment.
Uh, so provider screening, uh,revocations, deactivations,
things like that.
That is where you could oftenrun into program integrity.
Uh, but they could also, youcould get a uh a fraud or an
(06:12):
improper billing audit.
Um, you may also see uh programintegrity involved in the denial
of claims or the collection ofoverpayments.
Uh, program integrity is alsobehind a lot of the data mining
and audits, although many timesthey're using different types of
contractors for that duty, whichwe'll discuss in a little bit.
Um, and then also there's awhole element of education where
(06:34):
they are out there providingeducation on their websites uh
through different types of ummedia.
And then of course, you can goto uh program integrity for
different types of advisoryopinions in certain
circumstances.
Um and then the other thing Iguess you might see them get
involved in is uh relates toinformation sharing.
(06:56):
So how you're sharinginformation across programs or
how they share informationacross programs, and they can
sometimes even get involved withgroups like law enforcement.
So God forbid you ever getinvolved with a DOJ
investigation involving claims.
Oftentimes OIG will be involvedin that as well, um, especially
if the claims involve billingconcerns or billing questions.
SPEAKER_02 (07:16):
Right.
And so what we really want tofocus on um not only with the
product or strategies, but wewant to talk about the new audit
trends that we've been seeing.
And so, Ross, what are youseeing in your practice in the
space of what I think is areally interesting trend of an
increase in commercial auditsversus government payer audits?
SPEAKER_01 (07:38):
You know, it's interesting.
It's it's always a it's always apush-pull.
Like sometimes I feel like whenall of our government, sometimes
all of our calls from clientsand friends and friends seems to
be related to government issues.
You know, we're dealing with aUPIC on every front or different
types of TPEs or different typesof investigations.
And then the trend will swingand suddenly we're dealing with
(07:58):
a lot of commercial audits.
And so um, it may be because ofchange administration where some
of the government contractorsmay be a little unsure of their
position in the program.
Uh, but we're definitely in someof the big insurance plans, you
know, such as United, have seeninvestigation and scrutiny from
the government on how they'readministering these plans.
So we're seeing a lot moreactivity recently on the
(08:22):
commercial side.
Um, a lot more.
And the interesting thing aboutthis to me is that these big
commercial plans have always hadSIU, special investigation
units, or at least they've hadthem for a long time.
Um, but their methodolmethodology was more like, you
know, send a document request,send an audit, uh, maybe they'll
put you on like a prepay reviewsystem, things like that.
(08:45):
We've seen a swing where theyare getting a lot more
aggressive in reporting activityto the government agencies.
In New Jersey, especially, theylove to do that.
Uh, we've seen a lot ofinquiries that involve things
like asking for interviews.
Uh, we had one payer asked tocome on site and do a survey,
(09:08):
uh, an add-of-network payer atthat.
It's not even somebody thatwe're in contract with that we
are, you know, trying to befriends with.
It's just somebody that wewanted to get paid for.
And they tried to come on siteand you know, you know, do a
full survey of our client.
Uh we we politely declined uhthe offer and uh agreed to to to
speak and communicate in otherways.
(09:30):
But you know, their lawyer andtheir investigators assured me a
lot of people agreed to it, anduh, which I think is is wild
that because that is notsomething I feel like we saw 10
years ago.
I I mean in your practice as aas a law firm lawyer, did you
ever see commercial plans tryingto come on site?
SPEAKER_02 (09:46):
No, I honestly I I think I have seen more on site,
even in spaces you wouldn'texpect, such as the Office of
Civil Rights, which isn't ourpart here.
But you know, it's interestingthat you say that because I
really do think that's wherethis session that we're doing
today and that we did at theannual meeting is we're really
intending to provide proactivestrategies for internal folks
(10:07):
looking for this.
You know, if somebody was comingon site, I think that there's
probably a lot of providers whomay feel required, right?
SPEAKER_03 (10:18):
Yeah.
SPEAKER_02 (10:19):
And I think it's really important, you know, to
work with your payer contractingteam and get very crisp now in
the sections on information thatthey can request in the
contracts to look for languagewhere it allows them any kind of
wholesale access to your site orwholesale access to data and
making their, you know, makinghaving uh sorry, making having a
(10:41):
requirement for a good faithinquiry, uh suggesting that
you're gonna have acommunication before people just
show up.
That's really important.
And when you're educating yourteam, looking out for this so
that people are aware if theysee letters from commercial or
government payers, you know,look for that, you know, maybe
that they're having anexpectation that they're gonna
(11:02):
come on site.
So that's really interesting.
Uh, you talked about uh the newadministration, and I think that
is obviously a topic in auditsthat we're watching and have
been watching since January.
Um, I think that there wasalways very clear intentionality
from the administration thatthey intended to target fraud,
(11:24):
waste, and abuse.
Um, I do think there has been umrumors and suggestions in the
industry that, you know, maybetheir focus is completely on
diversity and other types oftopics that weren't uh targeted
for fraud and abuse from prioradministrations.
But, you know, I still thinkthat even though we're eight
(11:44):
months in, that uh I'm notseeing anything incredibly
unusual other than thecommunication from the
government is that they're stillinterested in it.
But I don't think I've seeneither a big increase or
decrease in what thegovernment's doing other than
normal.
Um what are you saying, Ross?
SPEAKER_01 (12:05):
Yeah, certainly not on the Medicare uh or Medicaid,
you know, certainly not on theclaim audit side.
I know that some of my DOJpartners would tell you that
they're seeing a lot more um,you know, personal
investigations and things likethat on the criminal side or
individual investigations, buton the audit side, especially by
the audit contractors or the orthe typical audit agencies like
(12:25):
the IG, I don't feel like we'veseen any increase.
No, I agree with that.
Um, I think that's why sometimesit feels like the commercial
plans are taking up the gapwhere they're stepping in.
Maybe they're doing more, maybethey feel like they need to do
more to justify the governmentcontracts they have, or even on
just straight commercial planes,play uh claims, they are
investigating more.
(12:47):
Um you were touching onsomething interesting there,
which we'll I think we talk alittle bit about further.
But you know, I I know peoplealways love to hear about what
how you advise and uh yourclients within the company,
within the system, to beprepared for audits.
And, you know, talking aboutgee, I never heard of people
(13:08):
coming on site, but some peoplelet it happen.
I've 100% had clients wheresomebody, some well-meaning
person at the front desk didn'tunderstand what was going on,
thought they had to let peoplein.
And next thing you know, they'rerifling around the office,
looking in filing cabinets,things like that.
That later, when compliance orlegal got involved, you realize
they probably didn't have aright to do that, or at least it
was not an articulated right.
(13:29):
And somebody should at the veryleast ask them to step back,
take a breath, and call somebodyin compliance or legal who could
advise as to what the ruleswould be for that type of
investigation.
SPEAKER_02 (13:40):
Absolutely.
I mean, obviously, a lot of usin the provider space work with
really well-intended,mission-oriented frontline staff
who are about providing healthcare in their often small
communities.
So it could easily be someonethat they know or they're just
very kind.
And so, you know, I'm having uhnot a struggle, but we're always
(14:02):
having the focus that customerservice and good customer
service is great, but just likeyou don't want a cyber criminal
getting into your data becauseof your, you know, graciousness
to external parties, you know,you have to ask more questions,
I think, for people who areasking for access or data.
And and that's tough for peoplewho their normal everyday is
(14:25):
being very open, caring, youknow, people.
SPEAKER_01 (14:29):
That's right.
Yeah.
So how do you prefer?
I know you haven't been inWellspan that long, but uh, you
know, how how do you in an idealworld advise your your you know
client bodies or client agencieswithin your system?
How do you uh prepare them foraudits out of curiosity?
SPEAKER_02 (14:46):
You know, I think that it it really you have to
know who your stakeholders are,and we'll talk at our proactive
strategies about identifyingthose stakeholders.
But I always, as legal counsel,try to have a very open and you
know, feedback loop conversationwith compliance, internal audit,
revenue cycle, payercontracting, and others about
(15:08):
making sure that all the teamsare feedback looping to each
other the information you need.
Who are we in payer contractingefforts with when your contract
is open for negotiation?
What are we seeing in sort ofthe low level onesie twos denial
space that could grow?
You know, obviously uh it alwaysused to be things about
(15:30):
inpatient versus uh outpatientclaims.
If people were put in patienthospitals, you know, those are
the types of things thateverybody knows about to look
for.
But now, you know, as we keepgoing with our audit things
we're seeing new, I do needpeople, and I say this even in
the HIPAA space, like we have tohave a little bit more suspicion
(15:54):
of everybody who's asking usthings, right?
Right.
Like where you ask people topause when they look at emails
before they click download.
You know, I need everybody to dothat same kind of scrutiny and
hygiene in their verbalinteractions or phone
interactions.
So that's what we're talkingabout is just telling people to
(16:14):
take a pause.
You know, if you see something,say something.
SPEAKER_01 (16:19):
Yeah.
It's funny.
Um it's a podcast, right?
We're casual here.
Uh, you know, I picture myselfon the on the uh on the big
couch with Travis Kelsey and theother Kelsey uh talking.
Uh Kelsey.
Listen, if you if you announcean album drop right now, I'm
gonna be I'm gonna freak out.
Um the uh anyway, uh I I wasgiving this speech at the at
(16:43):
another hospital association uha few years ago, and the and I
always think of this storybecause it's so like indicative
of of exactly what you'retalking about, the kind of
people that let them in thedoor.
But this this uh complianceofficer from a small health
system that had multiple uhfacilities around like a very
rural area of Georgia told astory that she got a call from
(17:05):
someone who the this guy hadrolled up literally in an RV and
stepped out of the RV in frontof the facility, walked in, and
started demanding records.
Now, luckily, these people weresmart enough to call their
compliance department who whosaid, Hey, who is he?
Does he have a card?
Does he has he brought a pieceof paper?
Is he explaining who he is?
Let me talk to him.
(17:26):
Um, but as she's telling thestory, this woman from the back
of the room, who obviouslydidn't know her, stood up and
goes, I know him.
That happened to us.
And so apparently that you knowthere's this guy, just the
scourge of the uh the ruralhealth systems in Georgia at
least a few years ago, drivingaround.
They said he looked like he'dbeen in the woods for you know a
hundred days.
He's you know not professionalin the professional attire
(17:47):
whatsoever, bringing out somekind of weird ID.
And he really was from anagency, but he, you know, yeah,
he probably stuffed come fromthe pig jig, you know.
Right, right, yeah, from the bigpig jig.
Diana.
Um all right, we'll do thebarbecue cod podcast next.
But um, no, it's a great, it's agreat point about keeping making
(18:09):
sure people are trained to askwhy.
And luckily this group wastrained, and they they said,
gee, this this is there'ssomething odd here.
You know, he doesn't seem like atypical, you know, Georgia
surveyor or you know, governmentsurveyor.
There's something very strangegoing on.
Um, so um we're a little bit offtopic there, but you know,
there's a lot of other audittrends we're seeing.
(18:30):
I think I mentioned a momentago, um in you know, something
like the DOJ's investigationinto United Healthcare on their
administration of plans, I thinkis gonna cause a lot more
trickle-down scrutiny.
And the other plans as well,even besides United, who are
all, I'm sure, in a positionwhere they feel like their
programs are also subject toscrutiny, they're gonna pass
that down to the providers.
You're gonna see more inquiries,you're gonna see more demands
(18:52):
for documentation, you're gonnasee more prepay audits, you're
gonna see a lot more of that uhfrom them, uh, from these big
plans because they're afraid oftheir own scrutiny.
SPEAKER_02 (19:00):
Um seeing that, right, in the scrutiny from
commercials for the collectingco-pays, seeing a lot of plus
for documentation about effortsto collect co-pays or
deductibles for patients.
I think we're also seeing thecommercial payers doing what I
would consider almost intrusiveaudits for out-of-network
providers, as you mentioned, youknow, where they came, right?
(19:22):
You know, working around thestate prompt pay statute and
seeking additionaldocumentation.
And uh you and I both talkedabout it at AHLA annual meeting
in San Diego, that I had uhpayers requiring corruptive
action plans on out-of-networkproviders before they would
resolve anything.
And you know, honestly, it wasalmost aggressive the CMEs that
(19:46):
they were making doctors take,which we, you know, in another
lifetime pushed back on and saidthat we didn't think they had
the ability to do it.
But that does go back to, Ithink, really nailing down with
your payer contracting whatyou're seeing in the contracts.
SPEAKER_01 (19:59):
Uh yeah, you know, I've had that situation.
Oh, sorry, go on.
SPEAKER_03 (20:03):
Oh, go ahead.
SPEAKER_01 (20:04):
I was saying we've had that situation at least
twice that I can think ofrecently, where incredibly an
atom network payer is demandinga corrective action plan from
our client.
Uh now, but what they have isthey have their money in
suspension, essentially.
Uh they call it payment flag,but it's the same.
It's the same as a paymentsuspension where they are
processing claims and mostlyapproving these claims, but
(20:27):
they're refusing to pay you, uh,or in some cases they refuse to
fully process them until youresolve some other audit issue
with them.
It's the only, it's the onlyhook they have.
Now, it doesn't work in everyevery state.
Some states have prompt pay lawsthat um prevent this type of
behavior, but in states whereit's allowed, um, it's been
extremely burdensome.
And they're handing down thesecorrective action plans that are
(20:49):
they almost look like contracts,but without the benefits.
Uh, you have all the obligationsof being under contract, but you
don't have the guarantee ofpayment.
Um, it's it's it's veryinteresting.
And, you know, some people havesigned them uh because they need
that money badly and they'rewilling to do it, and other
people haven't.
Um, but it's definitely a newtactic.
It's not something I I wouldhave been sitting here telling
(21:11):
you about having seen before twoyears ago.
SPEAKER_02 (21:15):
No, and I think you know, the next gen of all of
this is artificial intelligence,right?
And it's everybody's excitedabout what you can and can't use
it for in the health system.
Um obviously, what we werelooking at is Epic and
Microsoft, the things that wecan use with our Outlook tools
and Epic.
But, you know, I have been veryinterested and have wondered how
(21:38):
much artificial intelligence isbeing used by payers and
government payers across thecountry and what they're doing
for denials.
SPEAKER_01 (21:45):
Right.
So that's we've had a hugeconcern about that for a long
time.
And we've seen a lot of evidencein it and in different types of
audits and disputes we havegoing on, especially with some
big commercial payers.
And so talking earlier, right,about that what is a complex
review?
A complex review means it shouldbe reviewed by a professional, a
human professional.
So that's a doctor, that's athat's a nurse, maybe it's a
(22:07):
therapist, depending on the typeof claims, but an actual human.
And we have we have definitelyfound evidence, and in fact,
we're uh, you know, there's somelitigation over it, uh, related
to some of these plans, clearlyusing AI.
Um, in situations where they wethink these complex reviews
should have been conducted byhumans.
And um, and it's it'sinteresting.
(22:28):
We're only going to see more ofit.
And and frankly, maybe they'regonna get better at it, and
that'll be even harder toidentify.
But I think that using AI in asituation that is uh written and
intended to be done with a humancompassion and a human sort of
uh intelligence for variation orexceptions and things like that
is an abuse.
(22:48):
It's an abuse of their of theirpower and perhaps an abuse of
their uh responsibility tomanage money on behalf of the
government or at the very leaston behalf of their members.
SPEAKER_02 (22:58):
You know, it's interesting if you've been
watching the TikTok videos abouteverybody who's been filming
their peer-to-peerconversations, the doctors
who've been filming theirpeer-to-peer conversations uh
with the various payers, I thinkthey would tell you that they're
already artificial intelligenceon the other side of the phone,
right?
Because they won't do, yeah.
They won't tell you anything.
And so it has been interestingthat you're expected as a
(23:22):
provider to not use artificialintelligence to do anything that
you're expected to do to file aclaim.
So you would have the sameexpectation on the other side.
But I know that we are only atthe genesis of what we're gonna
see in these types of audits forthat.
SPEAKER_01 (23:39):
That's right.
I mean, in the same breath,they'll they'll accuse you of
using electronic signatures orthings like that.
You know, and I'm like, wait aminute, you used a robot to
review the medical necessitybehind a heart surgery.
You're on me for you know,electric electrically signing or
electronically signing uh anorder.
Um yeah, it's interesting.
Um the other thing we're seeingthat isn't going away is the
(24:03):
TPEs, uh the target probe andeducate.
And I love I actually I say thisall the time, and people act
like I'm crazy, but I actuallylove a TPE audit um because it's
one of the few types of auditsthat I can think of where you
have a constant conversationwith the payer about what they
(24:23):
expect.
And usually it's Medicare,right?
It's Medicare math.
And so what this so a TPE isthere's multiple levels and
they're scary and they ask for alot of documents, and everybody
kind of freaks out at first.
Um, and if you fail that firstround, then it you ever
everybody really gets worried.
But then you have the secondround and the third round, and
on that by usually by the thirdround, people are getting the
(24:44):
documentation right.
Many times they found someonegood at the Mac who they can
call with a question and say,hey, gee, we're confused by
this, or is this okay?
Should we not do this next time?
Things like that.
And I've actually been veryimpressed with the TPE process,
even though everybody complainsabout how onerous they are and
how much work they are, and theyare.
(25:05):
Um, but I have been veryimpressed with that program in
general.
Um, you know, you pick, theycome in, they you know, they
look at 100 claims, they theyextrapolate out to the to the
ends of the universe, literally,and uh, you know, suddenly you
know$100,000 worth of claims isworth you know$10 million worth
(25:25):
of claims, and they wanteverything back, and there's no
explanation.
They just, you know, they send astatistical report that most
statisticians are completelyconfused by.
Um, they deny a few claims gotbased on you know various
reasons, and then they send itback to the Mac.
They issue an overcame anddemand, and you don't you don't
talk to a human ever on those.
Maybe it's an ALJ, someone willshow up.
(25:46):
Um the TP I totally agree.
SPEAKER_02 (25:49):
The TPE audits were definitely and are definitely,
if you can have a favorite, myfavorite.
Uh, I always compare it to Iknow that you know, one of my
first in-house roles, I came inon the front end of a corporate
integrity agreement.
And I know that everybody feelsvery challenged by that because
it's reputational and otherwise,but frankly, it was a it was a
(26:10):
wonderful experience for us forthe years that we had it,
because I had a shout-out toAmanda Copsey, uh, an OIG
monitor, who was my on-call,just like in the targeted probe
and educate.
You know, you can learn so muchfrom having a phone
conversation, you can learn somuch from each other.
And they listen in the TPEaudits just like our OIG monitor
(26:32):
listened to us.
And so I, you know, again, we'regonna talk in our project
strategies about take full, youknow, take full effort of these
opportunities that you have toget this information so that you
are giving them what they want,right?
And so I absolutely think it'swell worth it to take every
advantage when you have someoneon the phone who will talk to
(26:52):
you.
SPEAKER_01 (26:53):
No, I think that's funny you you mentioned the CIAs
because you know, we actuallyhave, I don't really, obviously,
I'm not a deal lawyer, I'm alitigator, but I I will
occasionally advise on thesetypes of issues for deals.
And it's amazing now we actuallyhave you know private equity
clients and other folks who lovea good CIA.
I mean, they don't love goingthrough the process, they don't
love the repaying it.
But you know, if they see anentity with a CIA, they're
they're like, oh, that's great.
(27:13):
That's you know, sometimes thatcan be a mark of of uh of
approval, you know, a mark ofquality.
Um so it's it's interesting, youknow.
That's and that's exactly theright viewpoint you should have.
Now, it doesn't mean it's a it'sa full get out of jail free card
on every issue that they have,but at least on the issue of the
CIA, you can you can presumethat they should be um in good
shape there.
SPEAKER_03 (27:32):
Absolutely.
SPEAKER_01 (27:33):
Well speaking of nasty audits, I already touched
on them a little bit, but thethe UPIC audits, and these are
still out there, they're stilljust as painful as they've
always been.
This is uniform programintegrity contractors.
Um, there are still severalacross the country, but the ones
you see are Safeguard and CoventBridge.
Um, if you haven't had an auditin a while, you may remember
these as ZPICs, uh, but theychanged the name on them a few
(27:56):
years ago.
Very much the same thing.
See them a lot in Medicare PartA, but um, we see them the most,
frankly, in Diddy Post, DEME,um, prosthetics, and orthotics,
although that you can see themin other circumstances than we
have.
We see them for ambulance andhospice and other areas as well.
A lot of home health.
Um UPICs are particularly nastybecause they're outside
(28:17):
contractors, they're outsidecontractors even from the Mac.
So, you know, if Palmetto isyour Mac, then they still use
Covent Grids or Safeguard.
Um, and they the hard thingabout a UPIC is if it's bad
enough, they'll put you onpayment suspension.
And the suspensions are very,very uh difficult because they
they suspend all claims.
(28:38):
So even if they're justconcerned with a certain type of
claim, everything is suspendeduntil the audit is resolved.
And they should technically beresolved in 90 days, but if
there's any allegation orconcern of fraud, they can
extend it almost indefinitely.
So we've seen UPEX go on foryears where there's an
allegation of fraud.
They just keep re-epping thesuspension, which as you can
(28:58):
imagine, is an absolute companykiller in those circumstances.
Um, and so they can do thingslike on-site reviews.
We have seen it.
We have seen them even try tointerview patients, which is
incredible to me.
Uh, I had in a hospice contextone time.
I was just trying to picturethat interview, Lindsay.
Like, hi, Miss Lonergan, are youreally dying?
(29:18):
I can't even imagine what thatmust have been like for the
people who had to sit throughthat.
But um, they can and they will,although thankfully it's rare.
Um, but these are definitely thehardest kind of audit you'll
deal with.
And as I already touched on,unlike the TPE or even to some
degree an OIG audit, you're nothaving a conversation with a
(29:39):
human.
You are uh you're boxing uprecords, sending them out,
hoping for the best, and thenyou get a big report, and that's
it.
Um, the report will likely use astatistical tripolation from
someone who's completelyseparate than the reviewer.
Um, you'll have to hire your ownstatistician to make sense of
it.
And most of the time they don'tmake sense.
Um, but if you do.
(30:00):
Get one of those, I highlyencourage you to review your
program integrity manual and tohire someone or find someone who
understands statistics very wellbecause they are often done
wrong, even today.
Uh, and they can be fought, butit's a big process.
It's multiple levels of appeal.
Usually don't get a lot oftraction on those until the ALJ,
(30:21):
and they're just really onerousprocess.
Um, the other really nasty thingabout a UPIC that I've seen
before is that they can also bereferred, they will sometimes be
referred to the DOJ.
So you don't just deal with theUPIC, um, then you could also be
dealing with the Department ofJustice, US attorney, who then
has to kick the tires on thisUPIC investigation and figure
out if it's something that needsto become a full-blown DOJ
(30:43):
investigation.
So very difficult.
SPEAKER_02 (30:47):
So I think we're gonna move, you know, to um
returning overpayments, andwe're gonna hit briefly on the
60-day rule.
Um I do want to go back and saylawyers don't do math, so you
should always hire astatistician.
Uh, none of us went to lawschool to do math, right?
Um, in terms of 60-day, again, Ithink everybody understands what
the 60-day rule from theoriginal Affordable Care Act
(31:09):
requires.
But, you know, the top the bignews is in the calendar year
2025 Medicare Physician feeschedule, CMS updated the 60-day
rule to change the definition ofan identified overpayment to
when a provider knowinglyreceives or retains an
overpayment.
The term knowingly has themeaning that's set forth, as we
know, in the Federal Civil FalseClaims Act, which provides that
(31:32):
a provider knowingly receives orretains an overpayment when they
one know about the overpayment,two, act with deliberate
indifference to whether anoverpayment exists, or three,
act with reckless disregard of apotential overpayment.
Most importantly, under the newrule, a provider does not need
to quantify the provideroverpayment for it to be
(31:53):
considered identified.
Uh finally, the updated ruletweaked the time frames.
Obviously, it's always said thatthere was a 60-day deadline, um,
but you can have it suspendedfor 180 days when you're doing a
good faith investigation.
But crucially unchanged is thatoverpayments must be reported if
identified within the six-yearlook back period.
(32:14):
Um, making sure that yourinternal audit or investigation,
if you're doing a 60-day rule,you know, you have to think
critically about when did theimpact change that created the
potential overpayment, and isthere any reasonable belief that
it goes back six years?
You know, I again I'm not gonnahit this too hard because I
really think that for most of usthat are especially in the weeds
(32:38):
of this, we don't think the rulehas changed at all.
Uh for my part, right?
SPEAKER_01 (32:42):
You know, it doesn't it definitely doesn't change it
in practice.
Like the way we advise clientsto to really comply with this is
it's not changing the way thatour clients are doing it.
SPEAKER_02 (32:51):
It's not.
And you know, to me, if you havepeople who are really leaning
hard into the six months, youknow, you want to make sure, and
what I've always done, butperhaps weren't done, is you
want to be able to demonstratein proof that you are making,
you know, a good faith forwardeffort throughout the six
(33:12):
months.
Um, I think that sitting becauseyour executive is thinking about
it while they're on vacation fortwo months is not great.
But many people uh information,also you, you know, there were
people who could argue, maybeeven me, uh made an argument
that, you know, if you held thebutton on the equals on your
(33:35):
calculator until you were readyto do it.
But I think it's if you're, youknow, people who are acting
reasonably, acting in good faithas we all should, there's really
nothing to the 60-day rule thathas changed.
I think it's just demonstratingthat you need to show that good
faith effort the whole time.
SPEAKER_01 (33:53):
You know, I always think of when I when I get
worried about potentialenforcement or that a client's
taking too long, I think of someof the enforcement cases.
And, you know, one of the bigones that was out there
initially was a group that, youknow, paid back a relatively low
amount over multiple years.
Um, they would just kind of likethey sort of slow rolled this
audit over like two or threeyears.
(34:15):
I think it was like New YorkMedicaid or something like that.
And you know, they just really,really took way too much of
their sweet time on it.
And which, of course, you know,you're not gonna let your client
do.
So we we try to keep them withinthat six months.
And and like I said, if it's asmall amount or if it's a it's
an easily identifiable amount,we remind them that six months
is not a guarantee.
If you know today exactly howmuch you were overpaid, we don't
(34:38):
need to look it up.
Uh we don't need to figureanything else out with it, then
you don't get that six months.
SPEAKER_02 (34:44):
Absolutely.
You know, and I think um youhave to always think about the
impact of what does thatoverpayment mean, right?
You know, you you should takethink carefully that when you
return an overpayment, you areindicating back to the
government that that was not aproper service or a billable
(35:05):
service or a medicallynecessary, whatever it is.
And so you do have to becritically thinking about what's
the impact on other claims,because post Escobar, obviously,
uh, and Escar, the Supreme Courtcase that talked about, you
know, what's material to thegovernment for repayment.
If you are actively proactivelyreturning that money, you are
(35:26):
telling them that you think it'smaterial to the government.
And so that is where I doencourage everybody to think
critically as a group and makesure you have a
multidisciplinary stakeholdergroup determining what those
overpayments are, because youdon't want overpayments being
returned in one area and notanother just because those
people didn't talk to eachother.
SPEAKER_01 (35:45):
Yep.
Oh yeah, gosh, that's a goodpoint.
SPEAKER_02 (35:48):
Yeah, and I do think, you know, Escobar is so
interesting.
Uh proactively, myrecommendation always is to be
very knowledgeable about whatyour local district court says
because those are the people whowant it, and being very
knowledgeable about what yourcompany has done in the
overpayment space for the lastsix years and going through
that.
Um, and as we get into proactivestrategies, we'll talk about
(36:11):
that.
SPEAKER_01 (36:12):
Yep, I like that.
SPEAKER_02 (36:14):
So, thinking of our time here and we want to keep
our people engaged, I do thinkgoing into proactive strategies
is the best.
So, you know, number one, uh, asI've said, is you have to have
an audit response team.
You can call it Bob's team ifyou want, but I think it's
really important for theorganization, you know, to have
strong processes and policiesrelated to its response to
(36:36):
overpayment.
It's typical that I go into ajob and that people are somewhat
aligned, but I think again, thepoint about what does an
overpayment mean to thegovernment and you returning it
is not something everybodythinks about.
So revenue cycle, internalaudit, compliance, quality
clinical review, and finance.
You want all of those peoplecommunicating with each other so
(36:58):
that you know what's going on,and that your organization's
response and identification ofan overpayment is driven by your
organization's policies andprocedures, right?
Especially those that addressrisk tolerance.
You know, uh, we could spendanother after we do our barbecue
uh podcast.
SPEAKER_01 (37:18):
Our barbecue podcast.
SPEAKER_02 (37:19):
Right.
We could do a podcast aboutlocal.
SPEAKER_01 (37:22):
We can put our barbecue sauces in front of our
screen like they do, and be likebe like, listen, when you get a
TPE on it, finish your barbecue,and then uh call back to eat
your barbecue before you givepeople access to your records.
That's right.
Invite your reviewer over, havea barbecue.
SPEAKER_02 (37:40):
Um I think it's important, you know, to uh maybe
we could test barbecue sauceswhile talking about low for
bright.
You know, we don't know aboutthe low for bright regulatory
review, what that will have.
But again, there's so manynuances to what's an
overpayment, what's your risktolerance is, what it means for
the organization.
100%.
(38:00):
You have to have thoseconversations um internally
before anybody can ever help youexternally, right?
SPEAKER_01 (38:09):
Agreed.
And and you need to decide,yeah, there's nothing more, and
as an outside lawyer, there'snothing more awkward for us than
when we get a call from a clientand they're trying to explain
the situation and they startarguing with each other.
And this happens all the time,where you know, well, we we we
think we have this big issue.
Here's what happened.
Well, I don't think that's theissue, Susan.
(38:31):
I think it's really this.
And like, you know, well, how dowe do it over here?
Well, in my department, beforewhen we had something like this,
we we didn't refund it.
And here's how we justified it.
And this other group said, oh myGod, are you kidding?
You didn't refund that.
We have to refund that in thisnow, you know, and we've seen
that before.
So you're you're 100% right.
Like getting everybody on thesame page as to risk tolerance
(38:51):
for audits and risk tolerancefor overpayments and things like
that is so important.
And unfortunately, it's notalways something that your
outside lawyers can do for you.
SPEAKER_02 (39:00):
No, and I think obviously as organizations ebb
and flow, um and we're havingthe struggles in academic
medicine, you don't want peopleto feel uncomfortable in
conversations that you'reinvading their lane, right?
But I think that the lawyers canbring forth that there is
(39:20):
judgment calls that have to bemade, and the judgment calls
need to be backed up withconsistency because an
inconsistent judgment over andover is the death knell, right?
I think that that's most or youknow, most explained in you know
what I deal with is unprivilegedinvestigation documents, right?
(39:43):
And if you look at those oversix years, you have everybody's
stamp, their flavor, their youknow, where they worked and what
their you know beliefs are.
SPEAKER_01 (39:53):
I heard my friend, the consultant over here, they
looked at it, they never engagedthrough counsel, probably not
even privileged or questionablyprivileged.
Um yeah, I mean, a role we dostep into a lot as a firm.
And it it takes a lot of thoughtand manpower when we do this,
but we do occasionally are askedto step in and say, okay, look,
(40:14):
we've got two competingarguments here in the
organization as to what weshould do with this tranche.
And we need you, don't, youknow, they almost we almost
become like an arbitrator uh ofa decision here.
So, you know, you've got Lindsayand her camp, and they're
concerned about this, and here'swhy.
You've got this other camp overhere, they're also concerned,
(40:35):
but they have a different um,you know, they have different
take on how much of an issue itis.
And, you know, what do youthink, Paul Tanelli?
What do you think as a firm?
And as a firm, we have a lot ofwork on that.
Because I that's not somethingRoss needs to answer on on the
fly on his own.
I need to talk to my partnersand say, hey, partners in
Denver, partners in Dallas, howhow do we answer this question?
(40:58):
Because God forbid, I don't wantyou calling me and getting a
different answer than you gotfrom my partner in Denver.
Um, because you know, we needto, we all need to be on the
same page with these things.
There's nothing worse thansomebody, you know, getting a
different opinion from adifferent person at your firm,
and then you have to resolve thetwo.
So um I think internally andexternally, that needs to be
(41:19):
those conversations need to behad.
SPEAKER_02 (41:20):
Absolutely.
And so ultimately the takeawayin this uh strategy is don't let
the UPIC be the reason you meetfor the first time.
Because before it happens, havea strategic audit response team
that has already dealt with thetough questions before you have
to.
And you know, that's tough whenpeople have day jobs, but
(41:42):
ultimately uh it's so important.
SPEAKER_03 (41:45):
That's a great point.
SPEAKER_02 (41:46):
Yeah, I think second, and also you know,
ancillary to this is that auditresponse team needs to see what
internal resources you have torespond to an audit so that you
know what external resources youneed.
And frankly, this is a spectrumas well, right?
Again, don't let the UPIC be thereason that you find out that
(42:08):
Bobby Sue is a great hospicerecord reviewer.
You know, the audit responseteam needs to inventory your
resources, including youremployees, to see what's
available clinical or otherwise.
And you have that becausethey're doing the onesie twosies
now.
But I think you know, this iswhere external and internal
(42:28):
counsel can work together tobuild some internal proficiency
that pays dividends.
It doesn't mean you don't useexternal counsel again.
It doesn't mean you don't haveto go through the painful first
two weeks of saying, What ishere?
SPEAKER_01 (42:42):
When I'm asking you for all these documents, you're
like, if that guy emails me onemore time asking for something,
I'm gonna lose my mind.
Yeah.
No, unfortunately, we have to bethat guy a lot.
No, I'm always a little proud,I'm always kind of proud,
actually, when a client, whenwe've been through an audit or
two and an appeal or twotogether, and then I get a call
six months later and they say,Hey, we got another audit, but
this time, you know, we did itourselves and we did these cover
(43:05):
sheets.
We did, you know, we preparedthe documentation this way, and
you know, we did pretty well atthe first level, but now we need
your help.
And I'm always like kind of likea proud parent where I'm like,
oh, okay, so we all we alllearned something together.
You guys handle that one on yourown, you don't need to pay me,
and I don't have to babysit andask for every document and
creation.
Um, and now I get to come in forthe fun part at the hearing or
(43:26):
or take on the really hard oneswhere nobody's listening to you.
Um, and and you can handle thatother part.
That that's ideal.
I I I think of that as a win inmy practice.
SPEAKER_02 (43:34):
And I think you and I, right, when my left the law
firm and you came in, we learnedthat together.
We had a very simple audit thatwas no more than$10,000 about an
inpatient case.
And we had an external resourcebecause for me, putting an
external clinical reviewer orstatistician or physician
reviewer on a stand of any typeis a risk.
(43:57):
I have had it go verythoroughly, where they did great
when you were prepping them andthen they fell apart on the
stand versus like long-standingindividuals in your organization
building that expertise paysdividends, and they have the
ability to pivot with internalinformation and resources in a
(44:19):
way.
And again, shout out to KimWhitley if she's listening.
You know, you and I had thatexperience where you and she
were able to have a just reallyexcellent ALJ experience in
Georgia.
So that was such a great exampleof where you get external
resources.
And third strategy, educatingemployees about when you see a
government letter, do something.
SPEAKER_03 (44:40):
Yeah.
SPEAKER_02 (44:41):
Ultimately, that is another opportunity of internal
education, is where failure torespond is not good enough.
So absolutely, you want an auditresponse team so that people
know where things are supposedto go.
Yeah.
SPEAKER_01 (44:55):
What do you think, right?
Like if the guy rolls up in anRV, uh, he's not bringing you
barbecue sauce, then you need toyou need to question what is is
is he really there legitimately?
Um, but that's part of a goodresponse plan.
Yeah, gee, this is weird.
This smells odd to me.
I'm gonna call Lindsay and findout what I should do here.
SPEAKER_02 (45:16):
Um absolutely.
And then the audit responseteam, again, another strategy is
making sure you fullyparticipate and defend all
denials.
Again, that one is even a$10,000claim can cause you problems.
And that's true for everything.
Every letter that comes inmatters, and every denial
matters.
Because if you let the denialgo, you have implicitly told the
(45:38):
government that was a claim thatshouldn't have been sent out.
SPEAKER_01 (45:42):
That's always my concern.
Yeah.
I mean, especially if it's aquote, if it's a I always tell
people this if it's a one-offmedical necessity issue or
documentation issue, and we'renot going to get the
documentation from the doctor orwhoever, it's impossible.
Maybe you let it go.
Um, but if it's a systemicissue, if this is how we've
documented these, or this is howwe've done this for a long time,
(46:05):
then you can't let one or twogo.
Um, because it it does, it doesbegin to feel like precedent.
And um plus I always feel likeit's it's like blood in the
water for the sharks, right?
Where they they suddenly feellike, oh gee, you know, if we we
just you know saber rattle alittle bit at this client, this
hospital or this thisphysician's office, whatever it
is, then we'll get a refund.
(46:27):
So, and I I feel like sometimesyou have to push back um in
order to get them to back off.
SPEAKER_02 (46:33):
You know, we could go on and on about this at our
barbecue podcast, butultimately, you know, these
things are in closing are thatthis is a complex audits, gray
law, but you have theopportunity with your external
counsel to have a strategicapproach to how you
operationalize audits.
While they differ in scope andfocus, everything has a common
(46:56):
thread of needing accuratedocumentation, clear billing
practice, and an establishedresponse protocol.
Proactively preparing isabsolutely so much value for
your money.
SPEAKER_01 (47:10):
So, what you're saying is, Lindsay, you think we
need to do uh this presentationagain at the annual meeting next
summer?
SPEAKER_02 (47:16):
Absolutely.
We absolutely will want to seeyou in New York.
It's the first time AHLA will bein New York since 2014.
So we hope that you'll join usthere and we will bring our
barbecue sauces and we'll bringit to New York City.
We appreciate everybody joiningus today.
Thanks y'all.
(47:36):
Thank you.
SPEAKER_00 (47:42):
If you enjoyed this episode, be sure to subscribe to
AHLA Speaking of Health Lawwherever you get your podcasts.
For more information about AHLAand the educational resources
available to the health lawcommunity, visit AmericanHealth
Law.org and stay updated onbreaking healthcare industry
news from the major mediaoutlets with AHLA's Health Law
Daily Podcast, exclusively forAHLA comprehensive members.
(48:05):
To subscribe and add thisprivate podcast feed to your
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