Alissa Fleming, Shareholder, Baker Donelson Bearman Caldwell & Berkowitz PC, speaks with Sarah Bowman, Principal, PYA, about provider repayment considerations for governmental payers in today’s health care environment. They discuss how these issues are often identified within provider organizations, the timeline for determining the extent of the issue and quantifying the repayment, the important and often overlooked sampling/universe data methodology considerations, 60-day repayment obligations, and areas of compliance risk identified based on recent client work. Sponsored by PYA.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
Alissa Fleming, Shareholder, Baker Donelson Bearman Caldwell & Berkowitz PC, speaks with Sarah Bowman, Principal, PYA, about provider repayment considerations for governmental payers in today’s health care environment. They discuss how these issues are often identified within provider organizations, the timeline for determining the extent of the issue and quantifying the repayment, the important and often overlooked sampling/universe data methodology considerations, 60-day repayment obligations, and areas of compliance risk identified based on recent client work. Sponsored by PYA.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
Support for A HLA comes from PYA For nearly 40 years, PYA has helped clients find value in the complex challenges related to mergers and acquisitions, clinical integrations, regulatory compliance, business valuations, and fair market value assessments and tax and assurance. PYA is recognized by Modern Healthcare as one of the nation's top 20 healthcare consulting firms, and by inside public accounting as a top 100 accounting firm. Learn more@pyc.com.
Speaker 2:My name's Alyssa Fleming, and I'm a health law shareholder in Baker Donaldson's Charleston, South Carolina office. With me today is Sarah Bowman , with PYA. Sarah and I are delighted to be presenting this podcast to you today with the A HLA . And our discussion will focus on voluntary repayments, overpayments, and the many factors that come into play when determining whether a provider has an overpayment or repayment and considerations , um, once an overpayment has been identified. Again, my name is Alyssa Fleming and I'm a health law shareholder with Baker Donaldson. My practice focuses on healthcare regulatory compliance with a focus on reimbursement and fraud abuse.
Speaker 3:Thanks, Alyssa. My name is Sarah Bowman . I'm a principal with PYA and I serve clients on , um, a variety of different matters within our revenue and compliance advisory program. Been with the firm for about 10 years now, and I enjoy assisting on a variety of compliance, operational and managed care topics. Um , in terms of background, I've worked , uh, within the revenue cycle management area for a couple of health systems and various roles prior to my consulting life. So definitely have an appreciation for the auditing and monitoring process and, and identification of potential issues from both a provider perspective as well as from a consulting perspective, and really appreciate the opportunity to record this podcast and , um, to speak with Alyssa today. So with that, we will , um, kick it off as Alyssa mentioned. Um, we are gonna be talking today about , um, voluntary repayments and, and kind of how these items come about and things to keep in mind as well as some, some lessons learned and our insights and various hot topic areas that we are seeing in our work with various clients. So first and foremost, just to kinda level set, of course , um, as part of maintaining an effective compliance program and adhering to the seven elements of an effective compliance program, internal auditing and monitoring and the identification and, and response to detected offenses is, is really key and really important. And oftentimes that is the way that , um, these initial issues or potential issues oftentimes come about. Um, and so it's, it's first the, okay, I think we might have a problem within the organization. Perhaps we've build something incorrectly or , um, provider's documentation isn't supporting , um, the level of service that went out the door on the claim. Um, and so then from that identification point, it's really important to kind of have a, have a pause moment there within the organization to make sure that the scope of the issue is really identified clearly. Um, and we'll talk about that some more throughout the podcast, but when we think about the scope of the issues, is really just doing that internal analysis to say, okay, here's what we think that the problem is, or here's the , the problem as we've identified it. Here's the timeline that we think is associated with the issue. And really testing that to make sure , um, that you've got some, some clear date parameters. Um, looking at what potential payers are associated with the issue, what potential providers. Sometimes an area , uh, excuse me, sometimes an issue may be limited to, you know, one or two providers. It may be an entire group. Um, we've sometimes seen , um, issues related to specific service areas. So maybe it's not all of a particular type of procedure. Maybe it's, you know, an issue that was identified at a particular location. So, you know, at an, at an A SC as part of a, of a larger health system, for example. And then , um, obviously at the end of the day, what everyone is, is concerned with is making sure that that gets remediated at appropriately, that the financial impact gets quantified , um, and that everyone can be comfortable with those steps that they were taken , um, carefully and , um, in accordance with , um, all of the requirements. And so, just as a reminder, when we talk about an overpayment that's really defined as any funds that a person receives or , um, those that are retained to which the, the person or the provider after reconciliation has determined that they , they were not entitled to. So receiving funds that, that, that you should not have received. And so it's important to, to make sure that , um, that that piece of, of funds that are being received, that are not, not aligned with billing or payment rules that could be related to something that was intentional or something that was inadvertent, something that was accidental. Um, so either way, gotta make sure that , um, you know, if you submitted the claim and then you later found out that you had submitted it incorrectly or you'd submitted it, you know, without the, the appropriate modifier or something like that, either way, it's, it's gotta be corrected. So overpayments include payments received for claims that were submitted , um, in violation of Stark and anti-kickback, and then anything that's retained after the repayment deadline , um, obviously becomes an obligation of the False Claims Act. So really important that, that , um, these things are taken care of and taken care of properly.
Speaker 2:Yeah , and along those lines, in terms of, you know, potential false claims, liability for retention, the improper retention of overpayments, and that really , you know, Sarah , as you mentioned, you know, falls under the reverse false claims provision of the act. And in more recent years, including, you know, this year we've seen more and more relators coming forward with , uh, complaints about , uh, failure to return overpayments, you know , providers identifying overpayments and then , um, making a determination either not to refund it or , um, just disregarding the fact that they've identified the overpayment. So there is an awareness there. Um, and we're seeing more and more of that, you know, type of claim where we typically didn't really see false claims cases based on, you know, voluntary repayments. I think along those lines , um, you know, as Sarah mentioned, you know, identifying, you know, the potential identification of an issue and then really looking at, you know, what is the scope of that issue is, is really important because when you're dealing with , um, you know, potential repayment and, and the obligations that flow from that, you know , there is, you know, a a fairly, there's a fairly tight timeframe to start working and , um, and really sort of identifying what the potential repayment liability might be , uh, under the, under the 60 day rule. Uh, and just by way of, you know, background, it's really the 60 day repayment window is really in effect once the issues identified and quantified , uh, and the government takes the position that, you know, the , the 60 day rule takes into consideration when the provider received credible information of a potential repayment and the reasonable diligence period . It's, it's really, you know , the , the leader of the two, unless the, if the provider decides not to, not to conduct reasonable diligence. And so , um, you know, credible information can mean any information that supports a reasonable belief that an overpayment may have been received , uh, sources of, you know, credible information. You know , where do these, where do these things kind of come up or arise? And as Sarah mentioned , you know , through the, you know, normal everyday internal compliance reviews , uh, that's certainly pretty fairly common. Um, employee complaints, hotline complaints , um, government audits, unexplained changes in revenue increases, so, you know, unusually high , um, WVU or profits, things like that are all sort of red flags that as you are working through some of these issues or issues are spotted, can give rise to , uh, credible information , uh, leading to the reasonable diligence period. And so, you know, just to kind of, I think some of the challenges that flow from this, are you identification of, you know, a single claim, you know, does that give rise to an obligation to do more? And I think the, I think the answer to that generally and, and is yes , um, that, you know, there is, there is, you know, identification of, you know, overpaid claims requires further investigation, and that's when the relevant time period really starts. And , um, Sarah , I don't know if from your experience you've run into providers that have or have confused, you know, the 60 day timeframe , um, the 60 day rule, and really what their parameters are for working through a reasonable diligence period. Um, I know that can be challenging to , um, to try to, to try to work through.
Speaker 3:Yeah, a absolutely, Alyssa, that is something that , um, oftentimes I think, I think outside of, you know, counsel outside of perhaps the, the compliance officer, oftentimes that is something that, that folks hear the 60 day rule and, and sometimes think, okay, we, we found out that we have an issue, you know, potentially today with this matter. So in 60 days, we've gotta , we've gotta pay back . Um, and it's really not quite that clear cut. Um, and, and really we try to encourage clients to , um, obviously make it a priority within the organization and , and kind of with all these other operational factors that are at play, but, but to take the time that's needed to make sure that the issue is, is kind of fully identified. So again, what's that , what's that scope , um, as , um, as we mentioned earlier, and then to, to quantify the extent of that. And sometimes that quantification step can take more time than, than anyone would like for it too . There are so many factors that really play into that in terms of availability of, of data and the quality of information that's able to be pulled from, you know, various systems, whether it's the EMR , whether it's, you know , backend billing systems , um, because , um, because of the, you know, increasing reliance on technology and healthcare , um, providers are really kind of at the mercy of whenever the last upgrade was or the last system change, sometimes we're, we're getting into legacy systems and things to really , um, make sure that quantification piece is able to happen and happen in the the correct way, so that it's , um, that it's a , a full analysis and, and that it's defensible, but also that , um, that we're not overstating that , um, that financial obligation either.
Speaker 2:No , that , that makes sense. And I think, you know, part of understanding the reasonable diligence period really is understanding, like, to your point, you know , the scope of really what, what needs to be done to identify, right, the relevant , uh, the relevant lookback period, the , um, the claims that are really , um, at issue Mm-Hmm, <affirmative> , right ? And then some of the challenges that can arise, as you mentioned. And sometimes, you know, you're going from, you know, a a you've gone from during the relevant back of paper EA paper record to an EMR or the ve the, the EMR , um, has changed. And so there can be , uh, there can be challenges just technologically with what we're, or, or from a practical perspective with what we're, you know , we're working with Mm-Hmm . <affirmative> , um, you know, just as a reminder, I mean the, the reasonable diligence period begins , you know, when a provider has credible information and the government CMS typically allows, you know, a six month period of reasonable diligence at which point then, you know, during that timeframe , um, you're hoping to really identify the full scope of the issue and quantify. And then once you've quantify the 60 day time period begins to really, the clock begins to tick on that. Um, I think, you know, one of the, one of the challenges that, that we have, you know, sometimes is really looking at, and Sarah , I'd be curious to know your thoughts on this too , is really looking at, you know, initially what's our universe of claims and is the issue that came forward, is that the only issue or are there other issues involved that we need to really think about? And sometimes that really requires kind of, I think, you know, peeling back the layers a little bit and asking, you know, fairly detailed questions and trying to get an understanding of, of how this was discovered, how it came forward, you know, the root cause of the problem or the issue and what other issues are, are involved. I mean , do you see any value in , in your experience of really kind slowing things down and, you know, just stepping back and taking kind of a higher level look from a big picture , um, standpoint?
Speaker 3:Yeah , yeah, yeah, absolutely. And sometimes, sometimes really that, that is one of the key pieces of, of, I guess, value. I would say that that can be provided by , um, leveraging a , a partnership with , um, outside counsel and, and with outside consultants to help look at an issue once it's identified. Because, because that kind of outside objective third party, you know, we don't really have a dog in the fight, so to speak. And so we're gonna come in and ask a whole lot of questions. And sometimes just through that series of of questions, we're able to narrow down somewhat the, the universe of, of claims that are within the scope of the , of the repayment matter and , um, to the benefit of the organization, but also just to the benefit of the analysis itself, because everybody has a vested interest in making sure that it is complete and correct. Um, and , and sometimes it might be as simple as, okay, we figured out that this issue, you know, only pertain to, to this area , um, or only pertain to this, this provider or this group of providers. And so, you know, all the other providers, while they may have been rendering services during this time period, if they did not also, you know, if they're , um, if the organization's analysis determined that they did not also have this same issue, then they can be excluded. And then that, that makes that universe amount that much smaller , um, to, to work with. The other thing that sometimes we see is just , um, making sure that, that you don't intermingle or , or commingle various , um, coding issues. Um, so it might be that that one, one item is identified, but as that review is taking place, as that identification process is taking place, you kind of alluded to this, Alyssa, there might be more than one issue or, or a couple of issues at hand. And making sure that, that when we look at , um, the variability of the issues and the payments associated with the issues and , and various metrics that , um, it might make sense that within that you have separate universes or separate buckets , um, upon which to, to probe and sample and , um, eventually extrapolate if that's what needs to occur. Um, and so just making sure that that is as specific and and complete as possible is really gonna be to the benefit of the organization.
Speaker 2:Yeah, and to your, to your point, you know, sometimes you have situations where, I mean, just by way of example , um, you've identified, you know, maybe a, a issue that involves coding, but then there's also maybe overlaid on top of that a medical necessity issue, right? And so then we've got maybe different types of procedures or different types of services that are, that are involved. And, you know, I think in terms of identifying a universe, we could collectively say, well, here's our universe, but then to establish whether or not that that, you know , to , to, to look at, you know, what the error rate is, for instance, really wouldn't be accurate to pull from that entire universe to , which is to your point, you know, does it make sense to separate, you know, issues or claims into different buckets and really sort of drill down on, you know, something at a, at a, a , a different level of, of detail to make sure that whatever you are identifying as your universe and then your probe sample is reflective of, you know, the, is going to give you an accurate, an accurate error rate at the end of the day. Um , and so I think that's something else that, you know, that's to consider. And I mean, you know, Sarah , you and I , you and I have both worked on things together where we, we really can't glean a sample from , uh, just a, you know, probe example of claims. You know, you really have to actually look at claims on a claim by claim basis, or you've got to the medical record or the billing records don't reflect the issue, maybe because of the way the services were documented, which raises an another sort of complexity to really determining, you know, what your real error rate is, so to speak, and how to, how to really evaluate that, both from a reasonable standpoint, but also a more accurate and I think conservative approach.
Speaker 3:Yeah . Yep . Absolutely. There have been instances in which we , um, you know, either based on data limitations from, you know, the , the client's legacy system or because of the, the complex nature of the issue that was identified, where we end up walking away from kind of that, that probe approach. And we have to take a completely different approach because we know that because of, you know, there are one or more kind of limiting factors that we know would make that approach , um, not, not provide a , an accurate result at the end of the day, not provide something that from a statistical standpoint could, could , um, result in a statistically valid random sample to, to be able to rely upon. And so then , um, that's when we've gotta be , um, give, give quite a bit of, of thought and, and analysis work to, okay, what, what does our review now look like? Is it a , a larger sample of claims , um, to be comprehensive in that way? Is it a data-driven approach that we can get comfortable with? Um, again, depending on the nature of the issue, it becomes, it becomes pretty , um, pretty subjective and pretty specific to the, to the issue at hand by that, by that point. Um, but that's definitely , um, that's definitely always our goal. Um, and that really gets into , um, what does the, what does the universe look like at, at the end of the day? Um, you know, is it something that we're, we're gonna be pulling data from , um, a a number of disparate systems to, to get to the, to get to the starting point. And then , um, as I mentioned, you know, statistical insight is really needed , um, if, if you're gonna go that route from an extrapolation perspective,
Speaker 2:Right.
Speaker 3:I , I , both of those situations <laugh>. Yeah,
Speaker 2:No, exactly. And, and just from a statistical , um, you know , uh, perspective, I mean, I think ensuring that your sample is statistically valid is really important if that's what you are going to rely on as the basis, you know, for the repayment. And so , um, you know, that's where really I think, Sarah , to your point, the value of , um, you know , working with a statistician can be particularly helpful because, I mean, what you're , from a provider perspective, anytime , you know , you're making a , um, voluntary repayment or you're, you know, you've got a situation that may be during the reasonable diligence period you started and you think, oh, it's, it's really along the lines of a repayment, but we learn through the course of reasonable diligence that maybe we've got other issues that make, you know, self-disclosure under OIG g self-disclosure protocol or CMSs, self-disclosure, self-disclosure protocol more appropriate. You really start thinking about, you know, what is the government, what, what's the most credible approach to take? And , um, and wanting to ensure that whatever methodology is used is going to yield and valid and statistically, and , and even if we're doing this on a claim by claim basis from a , you know, the methodology can be explained and backed up.
Speaker 3:Yep , yep . Absolutely. Absolutely. And that is definitely where , um, you know, sometimes we've had clients that, that have tried to, to do these analysis steps internally, and, and certainly there are some that, that have success with that, and that's fantastic. But , um, it , it, it is nice to be able to have that external , um, third party to , um, give those steps and that those pieces kind of the , the green light at the end of the day because , um, again, as consultants, we, we , um, because we're not the operators and we don't have all of the institutional knowledge about the providers and the care locations and all of those pieces, you know, we're just gonna come in and ask a whole lot of questions and really try to try to validate all of those steps and all of those pieces. And oftentimes , um, the result is, is , um, impactful in a positive way to the organization , um, and that we're able to narrow that focus, or we're able to sometimes revise the approach if it's something that is complex and , um, having to be pieced together over, you know, a longer period of time. If we're looking at a full six year look back , for example, a lot can happen these days in healthcare in six years. And so , um, that's where it can become challenging if some data is available for , um, a particular period of time, but then perhaps a different data set , different parameters, et cetera, are available , um, from, from a a , a further distance look back period , um, perhaps the legacy system, you know, data pools are , are not able to be as robust and as detailed as what we need for the issue. Um, that's where we've gotta get, get comfortable with , um, the ability to put those two data pieces together and get a full picture. So that's definitely something that, that we see with clients often and are able to help with.
Speaker 2:Yeah . And oftentimes during that, you know, six, if you're, I mean, you can really be any look back period, but let's hypothetically say, you know, we've got a six year look back , and sometimes you're working, you know, particularly with federal healthcare program payers, sometimes we've got multiple player payers, multiple fee schedules, the fee schedules change , um, uh, you know, over a period of time or annually. And so there's, you know, it can be, a lot of it can be cumbersome for a provider to try to work through that on their own. But then just having the validation , um, too from, you know, an objective third party to, to demonstrate to the government that, you know, as part of the reasonable diligence, there has been an effort to, you know, verify and confirm that what maybe, you know, the compliance team has, has worked through is can be backed up and supported and is , um, is, is accurate. So it's a , it's a way to, you know, really bolster, you know, maybe what you, the the analysis or the evaluation that perhaps a , a client has already undertaken. And then, you know, there are circumstances where, you know, from, like I said, you know, during reasonable diligence or even prior to, you know, maybe something's discovered that creates concern of a potential, you know, that there's, that there really is a situation where in addition to identifying overpayments, you're really looking at a situation that's more appropriate for self-disclosure. And so , um, a lot of this work, you know, can be, you know, done at the direction of council and, and, you know, you know, there's some work product considerations that, that come into play . Um, you know, I think overall, I mean, some of the things, Sarah , that, you know, we've seen just that giving rise to some of these issues you mentioned, you know, legacy builds and changes and , and software, but also, you know, like EMR builds and , um, you know , um, changes in billing rules or providers not understanding the rules , um, things like that, or just the software glitches where, you know, something's not really , uh, something's not updated or added, and therefore the, the billing is really , um, inadvertently, you know , uh, uh, there's a mistake in how something's coded , um, or billed , um, you know, changes to fee schedules , um, billing rules, all of that. And now I think, you know, we've, certainly, both of us I know have been working with our clients to come sort of back into compliance post PHE with the waivers, and then with some of the , uh, flexibilities being extended through , uh, 2024 through the, through the fee schedule and , and things like that. And so there's a , this can be fairly nuanced, you know, working through just, you know, once you've identified your universe, I mean, really what all the different issues are that come in, come into play. Um,
Speaker 3:Yeah. Yeah. And I think, Alyssa, one thing that, that we have seen in addition to, you know, obviously during, during covid and certainly in the height of the pandemic, everyone was trying to stay, you know, stay current, stay abreast of, of all the various waivers and, and flexibilities during the public health emergency. And so what we are really seeing now is, is not only the, you know, how do we kind of shift back to a pre covid state of, of operations and maintaining compliance there, but also during that PHE period , um, we know that, you know, providers were really focused on patient care as they should be. And, and , um, some of the more routine, perhaps compliance auditing and monitoring activities that were standard operation pre covid may have shifted some during that time, either because of staffing, you know, patient volumes , um, other, other things that were at the time, you know, obviously far greater priority. And so now some of those, some of those issues and some of those things that, that were, that were missed , um, during the PHE are starting to come to light too. And , um, a lot of them, you know, we kinda look at from a consulting perspective and think, okay, probably if it hadn't been for Covid, this might not have been an issue. This might have been something that was able to be identified and captured earlier. Um, but, but because of, because of the pandemic and, and folks kind of shifting their focus , um, some of these things are, are just now sort of coming to light. So the good news is , um, with those, you know, there are some issues that are gonna have a shorter look back period because they may have been, you know, doing everything right pre covid and something shifted during the PHE . So , um, hopefully in some instances, a shorter look lookback period. But, but some of those pieces are really just now coming to light for , um, for our clients, for providers that we're starting to see. So it's, it's really , um, kind of a convergence of a lot of things right now. And, and that's really just to, to reemphasize the importance of, of , um, taking that, that time , um, taking that reasonable diligence period and , um, not rushing that quantification step , um, which can be tempting to, to do. Um, Alyssa, do you wanna talk a little bit about the , the six month kind of period and, and when that might, an organization may even need beyond the six months for that? Yeah , no vacation step.
Speaker 2:Yeah, that , that's a great, that's a great point. So, I mean, generally CMS guidance, you know, they reasonable diligence. They say reasonable diligence should and can be conducted within, you know, the six a six month timeframe , um, absent extraordinary circumstances. And so, you know, we start thinking about, well, what does , what does that really mean? And it's, you know, typically in situations where the investigation is fairly complex , um, or very complex and usually complex , um, sometimes we've seen that happen with, you know, certain star law violations , um, and then you've got exceptions for natural disasters and states of emergency. Um, you know , I think that a lot can be done in a six month period of time, but sometimes, you know, it's, it's just the, the issues, like I said, you know, sometimes the issues sort of start as one issue, and as reasonable diligence progresses, more information comes to light that either changes the course of the investigation and valuation or, you know , adds to it. And so, or the issues are just , um, you know, the , like I said, I mean, some circumstances where, you know , you can't pull a sample set of claims and derive anything from that because of the way information may or may not have been documented in , in a medical record or , uh, some other, you know, reason. And so it warrants a different level and , and type of , uh, scrutiny and evaluation. So , um, you know, if I would say, you know, if, if there are situations where there's more time needed to complete this and just be mindful and be, you know, prepared to identify exactly why, the reason why the investigation is unusually complex and, and to I be prepared to identify that when any, any voluntary repayment is made or disclosure is , uh, is conducted. So Sarah , have you , um, you've worked, you know, in situations where, you know , issues have come up through normal compliance measures, but then I think, you know, we've both been involved on the transactional side and, and through diligence issues can come up in that way, which raises sort of a different , um, sometimes different implications and action plans because you're trying to really assess, you know, potential liability and, and things like that. You know, have you, what , what's been sort of your experience or your, you know, your, you know, insight, you know, in the difference between the two when something comes to you all?
Speaker 3:Yep , yep . Absolutely. So , um, that's a, that's a really good question. So , um, you know, when an issue is identified and it's not associated, you know, we're not, we're not looking at a , a target for a potential transaction. It's just sort of the, the provider and whether it comes through the, you know, a hotline complaint or an employee tip or, or , um, you know, through that, that regular routine auditing and monitoring process, you know, it's, it's kind of up to the organization. The organization is bearing that risk, and the organization is bearing that responsibility for remediating that identified issue after the, the extent of it has been quantified. When we think about a compliance issue and a , and a repayment sated with a potential transaction, then you have kind of two risk profiles to sort of take into consideration. There's the buyer's risk profile, and then there's the, the targets kind of historical compliance risk profile and the way that they have historically handled issues within their organization. And , um, then you also, you know, kind of have to layer on top of that, what is the future state gonna look like post-transaction? So what's the ownership gonna look like? What's, what are the plans for the, for the tax id? How's the billing going to occur , um, from an ownership perspective? Um, and so that is, you know, those are additional layers and additional factors. Um, depending on the, the timing of the, the date, you know, when the issue is identified and the anticipated close date, you know, the, the, the transaction itself could obviously be at risk, but also the, the, the timeline for the transaction can also shift , um, as well, assuming that it's an issue that everyone is comfortable with, you know, continuing to, to move forward knowing that that issue exists. And so , um, it , it becomes sort of multifactorial , um, when we're talking about it from a transaction standpoint versus when we're talking about an issue that's, you know, sort of I'll say just within the, the providers , um, organizational realm, and it's not associated with a transaction. Um, there , you know, oftentimes things are able to be remediated without , um, without, you know, the , the transaction being , um, put, put in jeopardy. But sometimes there are risks and things that are identified that can absolutely impact what that transaction looks like. It can impact the overall , um, dollars associated with the purchase price, even, you know, worst case scenario. So , um, it's really important, again, that I go back to, you know, once that issue's identified, kind of quantifying it. Um, and that can take, that can take on, you know, a couple of different looks and, and roles , um, within that target organization. Um, depending upon the, the state of affairs and the state of the targets business, you know, if they've had a lot of turnover in leadership and , um, maybe they've been on a number of different billing platforms , um, if they are, you know, really struggling from a financial perspective, it may be a bit harder to quantify, okay, what, what was the normal state of business and, and what , what point did this occur? And how far back, you know, how far back does this really go? Um, we've had sometimes a , a more challenging time getting to all of those answers , um, depending on the state of, of the targets business. And so really , um, that's where it's again, important to, to take the time that's needed , um, to, to be able to fully get in and, and figure out the extent of the issue, and then determine what type of disclosure is needed. You know, is there anything that can be , um, submitted, you know, buil as a corrected claim, is everything, you know, part of that , um, disclosure process or repayment process, or is there any remediation that can be done if it's something that occurred more recently? Um, so those are really things to, to think through from a transaction perspective. And then also from a provider perspective , um, you know, when we, when we are working with counsel as consultants , um, on anything that's related to an overpayment matter, that data is key because we are coming in as, as outsiders to the organization, and we don't have that, you know, institutional knowledge of, you know, when Dr. Smith started with the organization and when a new wing of the hospital was opened or when a new service, you know, began to be , um, offered and, and submitted and build . You know, we are really relying upon , um, our ability to ask lots of questions, and also the client's ability to be able to provide us with a lot of information and dates and facts. And sometimes, you know, depending upon the, the tenure of those involved at the hospital , um, or the, you know, whatever the provider organization is, you know, who's the best historian on some of this. And so sometimes it may take , um, meeting with a number of folks to kind of get all of the, the facts and the dates and the circumstances down pat in a way that everybody is comfortable with. And then obviously from a legal perspective and understanding the regulatory changes that may have occurred over time as well. Um, in addition to, you know, Alyssa , as we talked about some of the EMR changes and things. So we definitely , um, continue to see some, some risks both from a transactions perspective and then just as I mentioned earlier, as providers kind of go back to, I'll say normal, whatever normal means these days, normal compliance , um, activities in a, in a post covid PHE kind of environment. Um, Alyssa , you know, would it be helpful we can kind of run through maybe some of the , um, examples of some of the issues that we're seeing lately , um, in , in terms of actual matters that have required repayment? Would that be helpful?
Speaker 2:Yeah, I think that would be great. I did wanna just add one thing with , you know , in the transactional , um, space, sometimes, you know, it can be a little challenging because, you know, whether you're buyer side or seller side, sometimes they're competing viewpoints on an issue are competing evaluations. And so sometimes you're really trying to work toward , uh, what that middle ground is with regard to regulatory risk and exposure. And then, you know, ultimately, you know, it can affect, you know , post-closing obligations, including indemnities. So those are just things that, you know, are relevant in, in walking through and an identification of, of, of issues. But yeah, in terms of, you know, things that we've seen lately , um, you know, i i I one, you know, issue in particular that seems to be kind of hot on my desk recently are a lot of provider based issues and provider based billing. Um, you know, and, and inadvertently, you know, billing claims , um, you know , you know, as a freestanding versus provider based and trying to reconcile those issues or just even compliance within, you know, the, the regulatory requirements , um, to Bill is provider based is, is one thing. I mean , sometimes too, you know, with , um, scope of practice is always a big deal, particularly when you've got large providers that operate in many states. And so , uh, you're all , you're looking not just at, you know, what are the, maybe the Medicare or , uh, Medicare rules, but you've got to drill down on the state level , um, you know, to really identify is this within this individual scope of practice under state law? Are they, are they appropriately supervised? Is the level of supervision different based at , you know, on the state level versus the federal level? Um, are the Medicaid billing rules, you know, similar or different? I think Sarah , you and I have both seen this , um, in the behavioral health space with the sort of expansion of providers , um, for furnishing services in that space. Um, and , um, you know, also just things that really kind of get missed, like , um, you know, issues with enrollment or remote practitioners, not just telehealth, but a lot of remote , um, radiology, you know, reads and things like that. Um, um, you know, the EMR , we've run into this with EMR builds several times now where , um, you know, we, the build was built one way requiring certain attestations on , um, and, you know, that was not always in line with how a provider functioned operationally, but , um, maybe wasn't set up, you know, in the, in the, in the way that really made a lot of sense. Um, so, you know , do you, Sarah, do you wanna add, you know , to that from the, from some of your more recent , um, experiences?
Speaker 3:Y yeah, sure. I'd be happy to, Alyssa . Thank you. Um, and one of the things that I should have mentioned when we were just, if I could step back for a minute and we were talking about , um, you know, from a transaction perspective, if we're identifying an , an issue with a, with a target that's associated with a potential transaction, a across provider types, regardless of of what care setting we are talking about, we are absolutely seeing, you know, a heightened focus from a regulatory standpoint on private equity transactions. And so if it is a , a , a , a PE related transaction, just know that that is gonna , um, have a little bit more regulatory scrutiny associated with it. Um, in particular, we're seeing a lot of , um, a lot of risks, a lot of repayment issues , um, for behavioral health, but that's not, that's certainly not the only , um, the only PE target these days are the only area where there could be , um, um, a repayment need. Um, but behavioral health providers, you know, there were a lot of new entrants to the market , um, during covid , um, with the telemedicine expansion. Um, even existing behavioral health providers that had been offering services for a long time, you know, we saw some shifts operationally to meet the needs of , um, you know, patients being, being at home and not really wanting to come in for therapy or not feeling comfortable coming in to, to do that. Um, supervision, I know you mentioned this, Alyssa, it continues to be , um, kind of a hot button item , um, making sure that you've got, you know, records and documentation where needed to support what was happening , um, from a business standpoint. And then , um, because of the, the influx of new providers, or perhaps in addition , um, you know, making sure state scope of practice , um, requirements are met , um, oftentimes state Medicaid requirements for , um, providers and, and who is able to provide what type of services , um, can vary from Medicare, which can be confusing, particularly , um, depending upon the sophistication level of the organization and the tenure of their, their billing staff and the experience and education level, making sure that, that all of those pieces are aligned so that when you're billing, you know, state Medicaid, that , that you're doing so correctly, but also when you're billing Medicare that you're meeting those requirements, understanding that they may be , um, in some instances they may be different. And then another area where we've seen , um, a fair amount of activity this year would be related to infusion services. Um, you know, making sure the documentation there , um, supports the service and, and making sure the supervision there supports the service. And sometimes it gets really , um, it , it can get really , um, granular in terms of looking at, looking at the requirements and, and , um, you know, looking at the ways that the patients are scheduled, you know, are patients scheduled just through the Monday through Friday, like a traditional work week schedule , um, is, is this, is the center offering weekend coverage, you know, if they're offering coverage on the weekends, do they have the, the correct , um, staff compliment to be able to do that? Are they, are they , um, ensuring that they're maintaining the appropriate level of supervision for billing of those services? And that's where sometimes, you know, when you think about identification of an issue and, and quantification of an issue, it may be multi-step, it may be multifaceted, it might be looking at the, you know , billing data as well as the medical record as well as, you know, obviously communication with the client to kind of walk through , um, all of those, all of those pieces. So , um, there , there's a lot from a provider standpoint. There, there are a lot of moving parts there.
Speaker 2:I think too, one of the areas that's really kind of getting a lot of at least focus because there's been an increase in the ability to provide these types of services is really the remote patient monitoring and rebo remote therapeutic monitoring and , um, monitoring. And really with those types of services, again comes, you know, to your point, the relevant , um, scope of practice , um, issues, the , um, supervision issues, and then also the setting in which those services mm-hmm , <affirmative> are being furnished is relevant to, you know, some of the issues and , um, the, the payment issues. And so that's something that, you know, that, you know, we've seen also, you know, in the , um, um, outpatient dialysis space, which kind of goes to your point about infusion Mm-Hmm , <affirmative> , um, because you are really looking at, you know, you know, was there, you know, a , a physician , um, encounter at the appropriate time. And so it's not just the billing record that becomes relevant, right? It's the actual medical record that you're having to then look at and, and then, you know, depending on that documentation, maybe there's even more that needs to come into play. So I think really, you know, as we sort of wrap up , um, our, our discussion today, I mean, I think really the, the focus on, you know, a lot of this really needs to be, you know, being thorough and , um, and, and as you work, you know, as you work together, you know, council , outside council working with, you know, consultants is really to , you know, identifying whether there's additional risk. And I think that's where, you know, during that reasonable diligence period, we're , we're , while the focus can be on, you know, all the other things we talked about, you know, identifying universal claim , the universe of claims, identifying the root cause, I mean , we're really also too constantly evaluating what the potential risk is and what the potential exposure is. And, and also with that comes, you know, materiality. Um, you know, and, and if as council , if we're gonna have to defend an issue on materiality, then we certainly really want the, the methodology to be, you know, to be solid and explainable and credible. And I think that's where, you know, you're, you're really working together as a, as a team and , um, through this is , is really , um, is really important.
Speaker 3:Yep . And we, so we so appreciate , um, you know, having the opportunity to, to do this type of work and to help clients in this way. And , um, you know, working, working alongside , um, council from from that perspective , um, really helps strengthen , um, you know, to the extent that that a disclosure is determined to be, to be necessary really helps strengthen that , um, and, and close that loop. Um, we found we've had really great success with , um, submitting those , um, types of, of self disclosures both to Medicare administrative contractors and, and also to , um, the OIG with, you know, very few if any questions , um, at the end of the day when we're able to have a really tight process and a really defensible set of, of action steps to get to that, that quantification to get to that dollar amount at the end of the day. Um, so we, we so appreciate being able to do that.
Speaker 2:Absolutely. And , um, well, it's been so wonderful, Sarah , to talk with you today and thank you to the A HLA for the opportunity to , um, to, to have this conversation and, and to present. And , um, if anyone has any questions, certainly welcome to reach out , reach out to Sarah or me directly. And again, it's been a really nice opportunity and thank you very much.
Speaker 3:Thank you.
Speaker 1:Thank you for listening. If you enjoyed this episode, be sure to subscribe to a HLA speaking of health law wherever you get your podcasts. To learn more about a HLA and the educational resources available to the health law community, visit American health law.org.