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Take Medicare or Medicaid? Why You Should Have an Attorney on Retainer

They say that lightning never strikes the same place twice, but tell that to my colleague Bill. Bill has been struck by lightning twice and has lived to tell the story. Granted, he was not physically standing in the same place that he was struck the first time as when he was hit by lightning the second time – so lightning technically didn’t hit the same place twice. But it did strike the same person twice. Maybe Bill is just extremely unlucky, or maybe Bill is extremely lucky because he lived through the incidents.

An intense shock can severely impair most of the body’s vital functions. Cardiac arrest is common. Yet Bill lived. Twice.

lightning

No one ever thinks they will get struck by lightning. But it happens. According to the National Weather Service, so far this year, lightning strikes have killed at least 20 people in the US, and that does not even take into consideration the people who were just injured, like my pal Bill.

A lightning strike is a massive electrical discharge between the atmosphere and an earth-bound object. A lightning bolt can heat the surrounding air to 50,000 degrees Fahrenheit—that’s five times hotter than the sun—and can contain up to 300kV of energy.

Yet most people do survive, in part because lightning rarely passes through the body.

Instead, a “flashover” occurs, meaning that the lightning zips over the body, traveling via ultra-conductive sweat (and often rainwater), which provides an external voltage pathway around the body. When people do die from a lightning strike, it is usually due to an electrical discharge-induced hear attack. A body hit by lightning will show various signs of trauma.

Like a gunshot, a lightning strike causes both an exit and entrance wound, marking where the current both entered and left the victim. Lichtenberg scarring, which outlines ruptured blood vessels, frequently covers the body in odd, almost beautiful, spiderweb patterns.

lightning-strike-effects-lichtenberg-figures

Surprisingly enough, many lightning strike survivors do not remember being struck. Instead, the only evidence of the traumatic event is burnt, displaced clothing and marks along the body.

For instance, many lightning strike survivors report memory issues, trouble with concentration and severe headaches, all of which last decades after the initial strike.

Due to the rarity of lightning strike cases, less time and resources have been devoted to better understanding how these strikes impact long-term brain function. An unpublished study by medical doctor Mary Ann Cooper found that there were “significant differences in brain activity between lightning-strike victims and healthy people as they performed mental-aptitude tests.”

Aside from impacting long-term brain function, lightning strikes are also known to blow out eardrums, prompting constant muscle twitches and moderate to severe nerve damage. Overall, the effects of a lightning strike may range from a slight inconvenience to a debilitating, lifelong struggle. In the case of my colleague, you would never be able to tell mind looking at him that he has been hit by lightning twice.

Why is this – extensive – discussion about lightning strikes relevant? – Or is it not?

If you are a health care provider and accept Medicare or Medicaid, the risk of an audit far exceeds your chances of getting struck by lightning. In FY 2016, CMS continued its use of the Affordable Care Act authority to suspend Medicare payments to providers during an investigation of a credible allegation of fraud.  CMS also has authority to suspend Medicare payments if reliable information of an overpayment exists. During FY 2016, there were 508 payment suspensions that were active at some point during the fiscal year. Of the 508 payment suspensions, 291 new payment suspensions were imposed during FY 2016.

Medicare and Medicaid audits far exceed lightning strikes. Yet, providers believe in their heart of hearts that and on an audit (or an audit with bad results) will never happen to them, which causes providers to not engage in attorney until after the lightning strikes. Then it’s too late, and you have Lichtenberg scarring across your arm.

There is scene in Breaking Bad in which Saul, the attorney, stops a person from talking. He says, “Give me a dollar. Don’t tell me anything until you give me a dollar. Once money is exchanged, we will have attorney-client privilege.” What Saul was saying is that the exchange of money catalyzed the duty for Saul to keep all conversation confidential.

This was a low-point of legal-fiction television. It made great drama with zero accuracy.

The question is why should you have an attorney on retainer?

The obvious response is that you can have confidential conversations with said attorney at your beck and call. The honest truth is that you do not have to have an attorney on retainer in order for your conversations to be confidential. But is smart to do so, and I will tell you why.

If you call me and I have never represented you and you ask me a legal question, our conversation is legally protected, even if you hire a different attorney.

No – the reason to have an attorney on retainer is to be able to consult him or her with legal questions on a daily basis, and, especially of there is an ongoing audit. Most of my clients do not contact me when they receive the document request. They think, “Oh, this is no big deal. I will give my records to [state] or [federal] – [and/or its contractors] government and they will determine that my [Medicare] or [Medicaid] records are amazing. In fact the [state] or [federal] government my even ask me to educate other providers on what pristine records should look like. I got this. Easy, peasy, lemon-squeezey.” They contact me when they get an accusation of an alleged overpayment of $5 million. Lichtenberg scarring has already occurred.

The smartest clients contact me prior to receiving an alleged overpayment of $12 million or an accusation of fraud. They contact me the moment they receive a notice of an audit or a request for documents…before ever submitting documents to the government.

Because, regardless the type of provider, be it dentist, behavioral counseling, podiatrist, chiropractor, or hospital, understand that every communication with a government auditor and/or contractor is admissible in court – if the communication does not go through an attorney. When the [state/federal] auditor asks to see a record and you say, “Let me get it from my off-site storage facility” – BAM – HIPAA violation. When the state/federal auditor asks to see a record and you say, “Here it is,” and fail to keep a copy for yourself, there can be discrepancy in the future as to what you actually provided. And you are in a “he said she said” battle – never good.

On the other hand, if you have an attorney on retainer, you can ask any question you need, you can get any advice you desire, and it’s all confidential. It is as though you have Siri in your back pocket. It’s the 411 for legal information. It’s an ATM for legal advice. AND it is all confidential.

Next time you think to yourself, “Self, I will ace any Medicaid or Medicare audit. I don’t need counsel. I can talk to the auditors myself without an attorney. I got this.”

Think again. [Don’t, necessarily, call Saul, but call someone.] Because, like lightning strike victims, you may not even remember the audit. Until you are scarred.

Attorney/Client Privilege: Its Importance to Health Care Providers, and TIPS to Avoid Potential Pitfalls as to Former Employees

This blog is intended to provide TIPS to health care providers who have any amount of attrition with staff members and why these TIPS as to attorney/client privilege are so important.

First, I’d like to say, for the past few weeks, I have been moving homes and firms, concurrently.  Add in a trial or two into the mix and I haven’t been able to blog as often.  But I’m fairly moved in now (to both) and have one of the trials mostly wrapped up.

The idea for this blog, in particular, actually came to me while Robert Shaw, Senior Counsel, and I were Santa Fe, New Mexico for a trial.

While preparing the witnesses for trial, I re-realized an important aspect of attorney/client privilege that is vital to health care providers if there is any attrition in their staff.

I say “re-realized” because I already knew the importance of attorney/client privilege, but I realized the importance for health care providers to understand its importance, as well…hence, this blog.

If, for whatever reason, your company is forced to lay off staff or, even, if you have staff voluntarily leave your office, you need to read the entirety of this blog and pay special attention to the TIPS at the bottom.

Why?

What if you need to rely on that former employee for testimony in a hearing?

For example, you are CEO of a small or large health care provider company and your Medical Director or Compliance Director leaves your employment and you need the former employee to testify in the future.  Your former employee and your attorney will not be protected by attorney/client privilege.

You may be thinking…so what?

But attorney/client privilege is key in trial.

Let me give you an illustrative example:

You own a dental practice and accept Medicaid.  Lucy is your office manager.  She oversees the Medicaid billing, ensures regulatory compliance, and deals with denials that come from NCTracks.  She also enters the data into NCTracks.  You, as the dentist, provide dental services, but you have little to do with what Lucy does.  You trust her and she does her job well.

DHHS via Program Integrity conducts an audit and determines that you owe $750,000 in alleged overpayments. Maybe the auditor didn’t know that the notation “cavies” means cavities and dinged you for billing for filling a cavity because the auditor could not discern from the service note that a cavity was actually filled.  Or, maybe you coded the service for scraping the wall of a gingival pocket, and the auditor did not understand what “curettage” is in the service note.

Regardless, you receive a Notice of Overpayment on May 4, 2015.  On May 7, 2015, Lucy tells you that she is having her first baby and wants to be stay at home mother.  You congratulate her and begin your search for another office manager.  You end up hiring Bill.

By the time that you need to get ready to defend your $750,000 overpayment with your attorney, Lucy has given birth to Annie and hasn’t worked for you for over a year.

But your attorney, in order to defend the overpayment, will need Lucy to testify at court.  Before a witness testifies in court, your attorney must meet with him or her to prepare the witness for direct examination and cross examination by opposing counsel. (If your attorney does not, instruct him or her to do so).

When I am in a situation such as the one I have outlined above.  I am extremely careful.  Because there is no attorney/client privilege between “Lucy” and me because she is a former employee, I am very precise in my prep.  For example, I would never discuss legal strategy with Lucy.  I would never show privileged information; I would never try to “lead” Lucy’s opinion. Leading a witness’s opinion could come across like, “Lucy, If I ask you on the stand whether your opinion is that curettage means scraping a gingival pocket, you would agree, correct?” Instead, I would ask, “Lucy, what do you understand curettage to mean and how would you normally code the procedure?”

Why?

Any attorney worth his or her salt knows that attorney/client privilege does not attach to a former employee.

Why does that matter?

Any opposing attorney worth his or her salt will cross exam Lucy as to every detail possible involving the meeting between Lucy and me. And I mean every detail.

For example:

Q: “You met with Ms. Emanuel in preparation for this meeting, correct?”

A: “Yes.”

Q: “When exactly was that?”

A: “Two weeks ago.”

Q: “What documents did Ms. Emanuel show you?”

A: “She showed me my direct examination.”

Q: “What do you mean? A hard copy of the questions that you would be asked?”

A: “Yes.”

Q: “Ms. Emanuel, I expect that you have no problem providing me with a copy of what you showed Lucy?”

Me: “Not at all.”

Boom! By Lucy testifying that I showed her my hard copy of my direct examination questions, opposing counsel is entitled to review my draft questions along with any notes I may have notated on that hard copy of Lucy’s direct testimony.  What happens if I have privileged notes contained within my questions? My attorney notes contained within the questions are now discoverable by the other side.

[BTW: I would never show Lucy my actual list of questions, unless I fully anticipated giving my list to opposing counsel.]

But you can see the potential pitfalls. Anything discussed or shown to Lucy by your counsel will be discoverable by opposing counsel.  What if your counsel, without thinking, tells Lucy that he or she thinks this is a weak case? Or tells Lucy that he or she hopes the other side doesn’t pick up on…..X?

Even if the attorney prepping Lucy states something disparaging about opposing counsel, or God forbid, the judge, those remarks are discoverable and Lucy must testify to those comments on the stand.

On one occasion, I actually had opposing counsel question my witness about our conversation during a 10 minute break, during which I was smart enough not to speak about the case.  My witness answered, “We discussed that I think you are b$#@!”  But counsel’s question was valid and allowable.  Because just as easily, during the break, I could have said, if I were not worth my salt, “Lucy, I did not like how you answered that question.  You need to say…..X.”

Judges do not look favorable on coached testimony.

TIPS:

As a health care provider, what measures can you take that if you are forced to call former employees as witnesses, you are poised for the best result?

1. Try to maintain a cordial relationship with former employees.

I know this can be difficult as every provider needs to terminate staff or has disgruntled employees.  But, even if you are firing staff, try to do so in a professional, amicable manner. Explain that it is a business decision, not personal (regardless the reason).  Give the soon-to-be-fired employee notice, such as 30 days, if possible.  If you would recommend the employee to a colleague, let the employee know and to whom.  These small steps can help your future in case of trial.

2. Re-hire the employee.

In my opinion, this avenue has an aura of attempted deceit, and I do not recommend this route unless you are re-hiring the employee in good faith.  For example, if you truly did not want to fire the staff member and you genuinely could use that person back in your office, or, if, in the case of Lucy, she decides that she wants to come back to work of her own volition and you still have the need.

An employee is protected by attorney/client privilege, generally.

3. Be knowledgeable or hire a knowledgeable attorney.

If you are concerned that your attorney may disclose something otherwise confidential in witness prep of a former employee, have a lengthy discussion with your attorney prior to the preparation session.  Sit in with your attorney during the prep of the former attorney.

Along the same lines as above, come to an understanding with your attorney which documents may be considered “hot docs” and essential to the case, and, which should not be discussed with a former employee at all.

4. Test the waters.

Prior to your attorney contacting Lucy, call Lucy yourself. Have a chat.  Catch up. Ask Lucy whether she is willing to testify on your behalf.  If Lucy starts cussing you out, you may want to think of alternative witnesses.  If there are no alternative witnesses, you may want to discuss with your attorney whether an affidavit or deposition could substitute for Lucy’s testimony at trial.

5. Pay for Lucy’s time

There is nothing wrong or unethical about compensating Lucy for her trial preparation and appearance at trial.  Obviously, this compensation is discoverable by opposing counsel and questions can be asked about the compensation situation.  But I believe it is better to have a happy Lucy, who feels that her time is valuable, rather than an increasingly frustrated Lucy, as each second ticks along.

6. Think ahead

If you know you will be terminating an employee or if you receive notice that an employee  is leaving, think about the most important aspects of his or her job and memorialize the procedures.  For example, in the case of Lucy, ask Lucy to draft a memo to the file as to her procedures in billing Medicaid.  Have her write which service notes are billed for which codes and the reasons in support and how she manually enters data into NCTracks.  It may seem tedious, but these notes will be invaluable during any future litigation.

Along the same vein as above, if possible, have Lucy train Bill prior to her leaving.  That way, if Lucy is an undesirable witness, Bill can testify that he follows the same protocol as Lucy because Lucy trained him and he follows her protocol.

Hopefully, these TIPS will be helpful to you in the future in the case of employees leaving your practice.  Print off the blog and review it whenever an employee is leaving.