WHEN DO YOU NEED A LAWYER IN AN OMIG AUDIT?

WHEN DO YOU NEED A LAWYER IN AN OMIG AUDIT? JIM SHEEHAN MEDICAID INSPECTOR GENERAL James.Sheehan@omig.ny.gov

DISCLAIMERS • I have been a lawyer • Some of my best friends are lawyers • I cannot give legal advice to providers about dealing with the Office of Medicaid Inspector General • The Code of Professional Responsibility requires a lawyer to answer “yes” to any inquiry that starts “Should I consult an attorney about . . .” (a matter in which the lawyer has or represents a potentially adverse interest)

WHAT SOME LAWYERS WILL TELL YOU • “It is extremely important to retain experienced counsel at the outset. Do not attempt to respond to an audit request by yourself.” • “This is not the time to scrimp on legal fees or attempt to be your own attorney.” • In most cases, for any appeal or any hearings on overpayment demands and fines, you will need to retain the services of an experienced billing and coding consultant as an expert witness and a health care statistician as an expert witness; you must use knowledgeable, experienced experts who have testified as witnesses in these kinds of case before .” • Website of The Health Law Firm

BUT WAIT . . . • This is an audit of clinical or financial records • OMIG does not bring attorneys to entrance conferences (or usually, exit conferences) • State law and regulation requires Medicaid provider to produce all relevant records on request • An audit involves financial, statistical, clinical, and coding issues more often than legal ones-should outside advisor be auditor, clinician, or coder, rather than attorney?

ADVANTAGES OF AN OUTSIDE LAWYER • If you have a problem, you need their (objective) advice • Secrecy for communications (but if you admit something you did wrong, they represent the organization-reverse Miranda ) • Ability to predict and plan for how things can go wrong or badly • If they screw up, it is not your fault (assuming you provided accurate and complete information) • Diffuse responsibility for delay in responses, failure to produce documents, putting off interviews • You can always fire them

RISKS OF AN OUTSIDE LAWYER • Cost (for attorney to learn your business processes, personnel, and vulnerabilities) • Control issues-lawyers focus on engagement and its outcome-but organization may have larger interests • Independence-accountability to larger organization • Delay-built into all lawyers’ DNA-need for perfect information and perfect analysis • Aversion to risk assessment, analysis of range of outcomes

WHEN DO YOU CLEARLY NEED ADVICE OF OUTSIDE COUNSEL? • After receiving draft audit with significant financial impact • Need to assure complete record prior to OMIG issuance of a final • Upon receiving NOPAA (Notice of Proposed Agency Action) could be either exclusion or censure, with significant implications not only for Medicaid, but for credentialing in other contexts

WHEN DO YOU CLEARLY NEED ADVICE OF OUTSIDE COUNSEL? • Receipt of a subpoena from OMIG or from MFCU • Execution of a search warrant • Target letter • Final audit with significant financial impact • Notice of agency action • Suspension of payments (withhold) • Exclusion of board member, voluntary staff, affiliate, employee, contractor, or significant referring provider • Identification of “overpayment” or “improper payment” with potential fraud issues • Admission by employee of improper conduct • E.g., home health aide who had someone else call in, employee who created records after the fact

FINAL ISSUE:MANDATORY REPORTING AND THE ROLE OF COUNSEL • Section 6402 of the Affordable Care Act provides for a mandatory duty to report, refund, and explain Medicare and Medicaid overpayments within 60 days of identification. • How does the role of an attorney change when the client has a mandatory duty to disclose? • What risks does client face?

MANDATORY REPORTING AND THE ROLE OF COUNSEL • Potential of no privilege • Risk of discovery of attorney files and conversations • Potential for conflict between attorney and client • Attorney obligation to advise of duty to report, refund, explain • Attorney role if advice not followed (“noisy withdrawal”)

IN RE: a GRAND JURY INVESTIGATION.July 23, 2002 Mass. SJC • “A quintessential element of the attorney-client privilege-the expectation of confidentiality in the results of the investigation-is absent” in a case involving a mandatory duty to report. • Those “involved in the internal investigation knew, or should have known, that they would have no “right to keep secret” any information disclosed by the internal investigation. . . ” • “The plain language of § 51A leaves no uncertainty that mandated reporters have an “affirmative obligation” to report. . .”

IN RE: a GRAND JURY INVESTIGATION.July 23, 2002 Mass. SJC • Also relevant is that the (defendant) touted its internal investigation to the public in an effort to explain and defend its actions. • The defendant cannot rely on an internal investigation to assert the propriety of its actions to third parties and simultaneously expect to be able to block third parties from testing whether its representations about the internal investigation are accurate. See United States v. Massachusetts Inst. of Tech., 129 F.3d 681, 686 (1st Cir.1997)

CONCLUSION • EVERY AUDITEE HAS THE RIGHT TO MAKE ITS OWN DECISION ABOUT RETAINING COUNSEL AND HAVING THEM PRESENT AT ENTRANCE AND EXIT CONFERENCES • EVERY PROVIDER SHOULD CONSIDER CONSULTING COMPETENT COUNSEL WHEN THERE IS A QUESTION ABOUT DUTY OF DISCLOSURE OF OVERPAYMENTS UNDER ACA 6402

WHEN DO YOU NEED A LAWYER IN AN OMIG AUDIT?