In this episode of "Counsel That Cares," healthcare investigations and litigation attorneys Sandra Heller and Jennifer Weaver provide insights on trends driving government enforcement and commercial payer investigations and audits in the behavioral healthcare space. The attorneys note the importance of maintaining a proactive approach by prioritizing early awareness, open communication and swift resolution of identified concerns to effectively navigate audits and investigations.
Morgan Ribeiro: Welcome to Counsel That Cares. This is Morgan Ribeiro, the host of the podcast and a director in the firm's Healthcare & Life Sciences group. And today, we're kicking off a series of conversations looking at trends in the behavioral health sector. Our firm has worked in this segment of healthcare for several decades, having represented some of the industry's earliest innovators, and within behavioral health, which is quite a broad sector. We are talking about anything from inpatient psych to substance abuse to eating disorders to autism and much more. We've worked across every aspect of the industry, and we believe that we bring a unique perspective to the challenges and opportunities that exist across the sector. So today, we are kicking off this series with a conversation with two partners, Sandy Heller and Jennifer Weaver, who spend their days working with healthcare clients, navigating issues involving commercial and governmental payer disputes and litigation, and more specifically in the behavioral healthcare space. So, Sandy and Jennifer, welcome to the show. So before we get started in kind of the meat of our conversation, would love to just hear a brief introduction from both of you. So, Sandy, you want to provide our listeners with some background on your practice?
Sandy Heller: Hi, everyone. I'm Sandy Heller. I'm a partner in the West Palm Beach office of Holland & Knight. I'm a healthcare litigator focusing on issues specific to healthcare providers. I have also, for about 15 years of my career, represented health insurance carriers as well. So I bring a pretty unique perspective to the work that I do for healthcare providers in this space, because I very much understand the thinking and the operations that are ongoing with health insurance providers.
Morgan Ribeiro: Awesome. And Jennifer?
Jennifer Weaver: I'm a healthcare partner in Holland & Knight, and I'm co-chair of Holland & Knight's healthcare industry team. My practice is devoted to representing healthcare providers in government investigations, False Claims Act litigation and Medicare/Medicaid audits and appeals. I've been fortunate enough to have over 20 years of experience representing behavioral healthcare providers. And that's everything from inpatient psych hospitals to opioid treatment providers, residential treatment centers to community-based and school-based mental health providers, and government investigations, both federal Department of Justice and state attorney general investigations, False Claims Act litigation and whistleblower litigation. And also Medicare and Medicaid audits, appeals, just all across the country. And it's just been an incredibly interesting and rewarding sector of healthcare to work in.
Morgan Ribeiro: Well, thank you both for those introductions. And I agree, and I think this is one of those areas where we're, across all the practice areas in our firm, we're seeing a lot of activity and so I think for this conversation, we really want to help our listeners, who are operating in the behavioral health space, understand there's interactions with payers, both commercial and governmental. When we talk about payer disputes, that covers a wide range of activities, including reviews and audits and investigations. So can you help us better understand sort of what we mean by those things and what we're looking at here?
Sandy Heller: When we talk about payer disputes and we talk about disruptions in the payment of claims, that can mean a lot of things. And so audit is sort of a global, umbrella term that we use to describe any sort of actions by a carrier where claims are not getting paid in the normal course in a prospective type of audit. Or we can be talking about a situation where the payer goes back in time and looks at claims that have previously been paid without any issue at all. This can include services that were pre-authorized before they were paid. They can look back for a period of several years, and they can make a determination that there was an overpayment in the payment of those claims. And so as carriers go through this process of either reviewing claims that come in prospectively or looking at claims that have been paid previously, it can be not only a disruptive process for a healthcare provider, but it can have pretty significant repercussions other than just the disruption of business. These types of reviews can lead to increased scrutiny of all claims submissions by a provider. It can lead to demands for recoupment or repayment of claims that were paid previously. It can lead to the termination of an in-network agreement. It can lead to litigation or arbitration. Typically when we think about these types of disputes, particularly when litigation results, typically you're going to think of a litigation that is incepted by the provider as the plaintiff seeking to be paid for claims that weren't paid or seeking to prohibit an insurance company from offsetting future claims. But there are also cases — and these are publicly available and you can find them — where insurance companies will bring affirmative claims for civil recovery, for commercial plans or for Medicaid advantage claims or other governmental programs that they administer. And so these health insurance companies will bring claims for fraud or for various torts or for RICO, and they can actually bring causes of action against providers as a result of these kinds of reviews and investigations. But at a very high level, those are what these sorts of audits are.
Morgan Ribeiro: And Jennifer, is that similar to what you're seeing on the the government side?
Jennifer Weaver: Most of government enforcement in healthcare is going to be driven by False Claims Act investigations. The False Claims Act is a statute that dates back to the Civil War. And it allows individual whistleblowers to bring claims on behalf of the government. And so usually somewhere between 80 or 90 percent of all the False Claims Act investigations and litigations across the country are driven by those whistleblowers. And that's where those cases arise. The one area that's similar to what Sandy's talking about on the commercial side is that for the past, you know, decade or more, what I've worked on a lot and my clients are facing a lot — and it's been really challenging and in some ways more challenging than Department of Justice investigations — are the proliferation of these CMS contractors. The UPIC auditors that are private companies that CMS contracts with to go after Medicare and Medicaid overpayments. And those are driven similarly by data analytics. They're looking at the entire trove of Medicare and Medicaid claims data and looking for outliers, looking for trends, and then coming up with these incredible extrapolated overpayments that can be in the tens of millions of dollars that are very difficult to get out from under I had the recent experience, but we got a great result. But it's just to say how challenging these matters can be for a psychiatric hospital. An inpatient psych hospital in Detroit, that was audited by one of these CMS contractors at the the height of the COVID pandemic. Detroit was one of the cities that was first hit in March of 2020. And to be in that environment in an inpatient psych hospital, and then dealing with these CMS contractors, they came back with a $22 million overpayment that we had to run through the Medicare appeals process. And the thing about that is that hey recoup that money before you even get to an administrative law judge hearing and you get a chance to really challenge it. These contractors a lot of times do not have behavioral healthcare experience. The medical necessity reviewers don't know the space. You're not talking about physicians with any experience in behavioral healthcare. But once you get that in front of the judge, in that case, it went from a $22 million overpayment to, I think it ended up being around $79,000 at the end of the day. So a great result. It's an incredible challenge for providers because of their ability, the contractors' ability to recoup before, you know, to take the money and then you have to fight to get it back.
Sandy Heller: You know, what's interesting is that you mentioned, Jennifer, that you have people with no behavioral health experience calling balls and strikes around the propriety of treatment. Similarly with commercial payers, what providers will face is what's called a more, sort of coding or administrative type review, where you will have individuals who don't have any training in behavioral health. And they are not looking at the propriety of, of the services themselves in terms of clinically, whether or not that behavioral service was appropriate. What they will look at is the record, and they will measure the record against the CPT codes or hick pick codes that were used in billing that claim, again prospectively or even retrospectively. And so in that process, they will call balls and strikes as to whether or not the coding itself is compliant, whether or not the documentation is sufficient to justify the code that's being billed. So the resulting consequences from those types of coding audits can be very significant. And there are a number of pitfalls around a provider getting the appropriate records in to even be reviewed by these coders. And so these decisions are being made with respect to medical services, absent any sort of analysis as to the clinical propriety or by a person with that sort of background. When we look at the types of clinical or necessity reviews, as well as the coding type reviews, a lot of these efforts come from trends and issues in particular areas of behavioral health where there have been objectively fraud, waste and abuse. And in defense of carriers, they do have a legal obligation to investigate suspected fraud, waste and abuse. But what ends up happening is that those types of efforts, some of which will incept from a carrier's SIU or special investigative unit or fraud division, you have very legitimate and compliant providers who may get caught up in those efforts. And so it's important to understand sort of a number of tripwires in that behavioral space that can cause these sorts of either prospective or retrospective type audit. It's important to understand that these incept from actors in this space who have engaged in fraud, waste and abuse with respect to these issues.
Morgan Ribeiro: What are those common pitfalls that our listeners need to be aware of. So, we know that these kind of audits and reviews are happening, we understand what's important to what kind of the commercial and government payers are looking for. But what are some of those kind of more specific pitfalls to be aware of?
Sandy Heller: The first I would say is just logistically responding to these types of audits. And the second more goes toward the types of patterns or issues in billing and treatment that may catch the attention of a commercial payer. If we look in behavioral space, there's a lot that the payers are looking at in the substance use disorder and addiction treatment space. Again, this flows from fraud, waste and abuse that has occurred in these spaces. And so it's important to look very critically at the use of toxicology, urine drug testing, saliva testing, those types of issues. As we know, there's been both significant litigation and statutory developments in this space as well, but very important that providers avoid the use of blanket orders or any rote type of testing that will get the attention of commercial payers. If you look and survey the types of of litigation that is ensued over the last several years, place of service issues, making sure that you are accurately identifying the place of service, the place of collection in the urine drug testing space. Jennifer, are you seeing those similar types of issues?
Jennifer Weaver: Similarly, on the government side, you're seeing a real focus on substance use disorder treatment and medication assisted treatment. And it's a little bit different, I think, than the commercial side and there is more and more coverage that is coming online for what I think everyone recognizes is a real national crisis in treating opioid addiction. You know, state Medicaid programs have rolled out coverage for medication assisted treatment over the course of the past decade or more. Medicare started covering it in 2020. And so with all that coverage, which is so desperately needed, you know, the downside to that is you are going to have more government scrutiny. I think how it differs a little bit on the government side is, again, a lot of the focus on medication assisted treatment that's mostly now being covered on a bundled payment basis. So, there's not as much kind of those separate billings for like urine, drug screen or other ancillary services that can trip you up in the commercial side. And again, it's frustrating to me as someone who represents providers, that on the government side, the focus really almost seems to be driven by, you know, the fact that that the Department of Justice has had this opioid strike force for years now. And so anything opioids, even if you're targeting providers who are trying to alleviate the opioid epidemic, they seem to get caught up in that snare. And the bundled payments, like I said, it's a little bit different. What the government is looking at is, you know, for medication assisted treatment, "is the medical side of that being delivered?" So whether the patients are getting clinical care. That comes along with medication assisted treatment bundle. Are they being seen by a physician? Are they receiving adequate counseling and therapy services? And that's being provided by licensed and credentialed staff? And that's something that in terms of licensing and credentialing, we see over and over again in this space. We're seeing similarly a lot of enforcement activity in this sector, but just maybe a little bit different. You know, on the commercial side, you're probably looking at more of a focus, I mean I wonder if that's true, Sandy, on some of the, I think of them as a bit sketchier providers like the sober homes and those types and that have very aggressive marketing campaigns.
Sandy Heller: Yeah, absolutely. And again, this is a lot of another area where there's been a lot of fraud, waste and abuse, but how legitimate providers can get themselves sort of caught up in these issues is unwittingly compensating sales or marketing type employees or contractors in a way that would run afoul of those regulations. So very important that providers are looking at how they're compensating those folks and making sure that they aren't running afoul of any of those prohibitions. There is a huge focus where carriers have actually brought affirmative claims forward, where there is some sort of subsidizing of housing for patients who are in addiction treatment. And so that can be very problematic. And making sure that even if you are a facility that has housing available, that there's no subsidizing of rent for the patients that come into the program. That can be a huge issue.
Jennifer Weaver: On the the the government side, we're seeing that as well. There's been an uptick lately, especially in the context of intensive outpatient programs, or IOP, with beneficiary inducement issues arise in the government context. So that would be a situation where you're an inpatient psych, and it's becoming increasingly common for patients who are discharged from inpatient psych hospitals to be offered free housing in order to get them into that stepdown IOP program and to participate in that instead of just going home. And IOP is shown through the peer review literature to be incredibly important in stabilizing patients and making sure that, that after discharge that their recovery does not get sabotaged by just, you know, going out of treatment too quickly. But, yeah, that's been a model we're seeing a lot. And the government's honed in on it. And so we're seeing some more scrutiny in that area on the government side as well.
Sandy Heller: Particularly in the IOP level of care, you know, you have patients are going back out into the community on a daily basis. And so some of the issues that flow from that are providers wanting to have very expansive testing to ensure that patients have not used again while they are out there, you know, being confronted with threats in the community to their sobriety. And so it's important to be very measured with the testing to make sure that it's not some sort of blanket testing protocol for those IOP patients, to make sure that if there is concern around the need for testing, that it's documented, and that there really is some intention behind the scope of substances and the level of testing that is being done. And again, with some of the bundling, some of those toxicology tests, at least from the commercial payer side, are included within the daily rate for the IOP. But to the extent there is separate testing for those things, I think it's important to be very intentional in that regard.
Another area in the substance abuse treatment space that is of huge concern to carriers is collection of patient responsibility amounts. And there are unique laws around provider obligations to make good faith efforts to collect those amounts that are different from state to state. Florida, as an example of a state, has a very robust statutory requirement in that regard. And if providers don't make that good faith effort to collect those patient responsibility amounts, it is a violation of Florida's insurance fraud statute. It can also be a per se or automatic type of deceptive practice that could trigger consumer protection statutes. So very important, very critical to make sure that the programs that you have in place to deal with indigent patients is very intentional, that it's been scrutinized by a lawyer in the space who understands what those requirements are and that you can demonstrate a good faith effort. Shooting out a letter may not be enough, particularly in certain jurisdictions or particularly under certain policies. It's also important to understand that if patients make complaints to their insurance carriers, that can also be a precipitating event for these types of investigations, particularly SIU investigations. So communicating with patients around what their patient responsibility amount is is very important, because I would think that that would be one of the first things that could really upset a patient or a patient's family and cause them to reach out to an insurance carrier, upset about that circumstance.
To the extent providers are being brought in, other providers are being brought in to offer other services to patients who are in addiction treatment, it's important that you are very mindful and intentional about those relationships. Who's billing for those particular services? Again, anything that can be viewed as as a kickback or benefit either to the provider, the provider that's coming in or to the patients who are being serviced, is something that is probably going to grab the attention of an SIU-type investigation.
Morgan Ribeiro: So you both have mentioned substance abuse as being, a highly targeted area. Are there other segments of behavioral healthcare where you're seeing similar activity, and what does that look like?
Sandy Heller: Autism is an area that's getting quite a bit of attention. And again, I think it flows from the presence of abuse in that space. What they will typically notice, is that there is a focus on the level of provider that is rendering the services and the appropriate use of modifiers. For example, utilizing a modifier to bill for one-on-one therapy, indicating that it is in fact a master's level or higher level individual rendering that care and making sure that those modifiers are being used appropriately. I've seen situations where you have a particular practitioner billing time codes for these types of therapies, and you add it up and it's 76 hours in a day. Obviously that's problematic. Most legitimate providers in this space are not going to do those sorts of things, but being mindful and intentional around the use of time codes, the level of practitioner who is engaging with the patient doing this type of therapy are the sorts of things that will trigger scrutiny on the commercial payer side.
Jennifer Weaver: On the government side, we're seeing a lot of the same things. Autism treatment, ABA, has been the subject of a lot of Medicaid, Tricare investigations and the same type of issues. They generally revolve around supervision, proper documentation and coding, and especially specifically documentation to support face-to-face treatment or one-on-one treatment. The other areas of federal enforcement on the government side that we're seeing a lot in the past few years are, adolescent residential treatment programs have come under a lot of government scrutiny. There's been a big Senate investigation on this issue, and investigations both at the state and federal level. And those generally involve, looking into long lengths of stay and whether providers are being overly aggressive and trying to fill those beds and keep those beds full. A focus on inadequate staffing of adolescent residential treatment centers and in the government's view, is, is inadequate staffing is leading to instances of, you know, patient-on-patient abuse, or some in some instances, staff-on-patient abuse. And, you know, there've been a lot, and it's been in the news media a lot. Running a residential treatment center, especially for some patients that are dealing with significant psychiatric disorders, is an incredibly challenging endeavor. And you can see even beyond the Medicaid investigations, the False Claims Act investigations. You know, some of that even ends up in something like OSHA investigations, because these can be very challenging environments in which to work.
Another thing, and this kind of goes back to the very welcome development of more investment in behavioral healthcare and more coverage for behavioral healthcare, which has been, one of the areas of healthcare that the number of people that, that need behavioral health care treatment just so vastly outnumbers the availability of providers. And so, at the state and federal level, they've tried very hard to close that gap, and we're getting there. But the growth in the sector also has led to an increase in private equity investment in behavioral healthcare. And the government currently is very big on focusing on private equity and these False Claims Act investigations on the theory that the private equity investors, particularly those that take an active role in their healthcare portfolio companies by holding the majority of board seats in the portfolio company, etc., that those PE firms are responsible for causing false claims to be submitted because they have the ability to improve compliance and prevent the submission of false claims. And so really the biggest False Claims Act settlement, and the first kind of real big one against a PE firm, was in the behavioral healthcare space. It was in Massachusetts back in 2021. It was a case brought by the Massachusetts AG's office, where they ended up with a $25 million settlement against a PE firm and the portfolio company was a behavioral healthcare center. And the allegations involved something we've been talking about, Sandy: mental health services provided by unlicensed, unqualified and/or unsupervised staff members. And so in that case, the Massachusetts Attorney General claimed that the private equity firm learned about these issues during the diligence process, but never took steps to fix it despite holding a majority of the seats on the mental health center's board.
Morgan Ribeiro: Sandy, going back to you. if I'm a provider, what does that kind of audit and dispute process look like?
Sandy Heller: Great question. So typically if it is a retrospective review, meaning the carrier is going to look back at claims that have previously been paid, what the provider is going to get is a letter requesting records. So you're going to get a spreadsheet listing a whole bunch of patients and claims. They can go back several years. It can all pertain to a particular code or a particular service that was being rendered. But they're going to want the full complement of records. And this can present a number of pitfalls right at the inception of this sort of audit. The first is sometimes these letters get missed. They tend to come in pretty innocuously in just a regular course of business sort of letters. So it's important that staff understands what these records look at, have seen examples of them and are always on the lookout for those types of reach outs, because I can tell you both on the insurer side and now on the provider side work that I do, it is not at all uncommon for sophisticated practices to just miss one of these letters. And again, it's a very sort of innocuous letter that comes in the mail, just like everything else requesting these records.
Jennifer Weaver: With the CMS contractor audits, the UPIC audits, that folks aren't familiar. They have names, strange names like Qlarant and CoventBridge. And so a lot of times providers, these letters come in, they're at the bottom of a pile, they forget about it, they don't take it seriously and then a couple of months later, they have a $10 million overpayment out of nowhere.
Sandy Heller: Yep. And on the carrier side, it can look like just a remittance advice document or something, just telling you what happened on a particular claim. So you have to be eagle-eyed on these things. And there are even situations where there may not be a record request, and the carrier may go back and look at a particular code, especially if Medicare has moved in a certain direction on a particular service or particular pick item. A carrier may go back and similarly look at their own analytics and their own data and make a determination that there's some sort of recoupment or overpayment. So the first order of business is definitely to be on the lookout and to have systems in place for that. Assuming that the provider has been asked for records, it is important that you have staff who understands how to gather the full complement of records. Now, for ancillary type of providers like laboratories, this can be a pretty heavy lift because what they will be asked for is the full complement of records, not just the laboratory requisition form or the report from the testing that was done, but rather the actual encounter with the patient where there was a determination that that particular diagnostic test was required. So that oftentimes requires a laboratory or other ancillary provider to obtain those records from the referring provider. And so it's important to have communication, to have processes in place to be able to get those records from the referring providers, and to make sure you have an avenue to do this. And that can be difficult because you certainly don't want to bother your referral sources as a laboratory. But it's important because carriers do have the right to ask for the full complement of records that underpin a service, even if you are a discrete ancillary provider like a laboratory. The next thing that you need to make sure of in this process is that you document where the records go to. Usually the request for records will have a P.O. box or a fax number, but I can tell you that nine times out of 10, any dispute between a provider and a payer that included the submission of records will end up with a, "No, you didn't submit them," "Yes, I did submit them," type of dispute. I advise my provider clients that when you are submitting these records, if you're faxing them, memorialize the faxing of those records. You can even take a picture of the records you're going to fax. You can also FedEx them. But to make sure that you comply with what's being asked of you in terms of where to send those records, that you document it as much as you can and then you seek a confirmation that the records were received. So then after the records are submitted, typically the review will take a month or two, and then you will get a determination. Now that is for a retrospective review.
For a prospective review, which means as you submit a claim, instead of getting the payment for the claim, you will get a request to submit the records that underpin that claim submission. The claim will be pended, meaning the carrier will say, "I'm not going to make a determination whether or not this is compensable or not. We're going to give you 30 or 45 days in which to submit the records that underpin the claim." If you don't submit those records, that claim will get denied. Sometimes the request in a prospective review can be just on the remittance advice. It's sometimes, it's not easy to see it. So it's important to look out for those records or to track, if you didn't get payment on something, to be looking at the information from the carrier to see if they've made a request for more records. Typically, at that point, if you submit the records timely, they have about 20 days to make a determination whether or not that claim is going to be paid.
Another thing that's very important to be aware of are what appeal rights you have as an in-network provider. Those are going to be in your network agreement as an out-of-network provider. You're going to be going by the policies and procedures in the handbooks. Typically, you will get a response that will tell you in the letter, if they have decided that the claim is not compensable, what your next steps are in terms of exhausting the administrative remedies available to you if the claim is denied. If it is a retrospective review, the outcome is a little bit different. And I'll talk about that in a moment. But it's very important. When you are facing a situation where you're in an audit and there are prospective reviews happening it's important that you understand who's auditing the records you're submitting. Is it a clinical review or is it one of these coding reviews? If it's a clinical review, who's looking at it and why? And so being guided through the process, consulting counsel through the process, can certainly be very helpful in that regard.
If we shift over again to the retrospective reviews, assuming you timely submit all of those records that have been requested, you will get a response from the carrier indicating the result of the review. If you get a result that the carrier has made a determination that they paid these claims in error, number of things you need to be looking at right out of the gate. First of all, you need to understand what that reason code is. Sometimes those reason codes will be very cryptic. It can be very hard to understand what the issue is. Are they taking issue with the service that was provided? Are they taking issue with the level at which it was billed, like a patient encounter being billed at a five instead of a three? Are they taking issue with a particular supply which they think was not compensable or not FDA approved? need to understand what type of determination they are making. You need to understand how long you have to respond. Typically it will tell you we've looked at these claims and we have made a determination that the claims you submitted were not compensable. There's a very important term here to understand, and that's extrapolation. But extrapolation means that the carrier will look, for example, let's say at 50 claims, and they will make a determination that something was billed inappropriately, that they paid it in error and that they should get their money back. They will take whatever they see in those 50 claims, and they will extrapolate it to the entire population of claims. So if they see an issue happening 100 percent of the time in 50 claims, they will then extrapolate it out to perhaps the entire population of claims, which may be 15,000 claims, and they will make the determination that 100 percent of those claims were paid in error, and they will seek recoupment for the entire population of those claims. So even though they look at 25 or 30 or 50, whatever determination they make can impact each and every claim that was submitted that has that issue within it. So the recoupment amounts can be very high, in the millions of dollars.
And it's also important to understand the mechanisms by which carriers will seek to recoup those dollars. There's something called offsetting That means that they give you an opportunity, let's just say a million dollars, to pay them back that million dollars. If you don't within, for example, 60 days, on day 61, they'll begin offsetting, which means for every claim you submit, they won't pay you for that claim. They will give you a credit against what they believe they're owed from their recoupment demand. So having counsel who understands the issues, understands the medicine and the coding, understands these insurance procedures and understands what opportunities there are to appeal or, if appropriate, to file an arbitration. Most in-network agreements require arbitration to settle disputes or to pursue litigation.
Morgan Ribeiro: I think it's helpful to understanding kind of the step by step and how does this play out. And it seems to me like this is one of those things that is almost like the cost of doing business, to some extent, whether or not that's engagement with commercial payers and these audits and appeals as well as on the government side, you know, from a staffing perspective, does that take a lot of manpower to be able to handle those those processes.
Sandy Heller: A million percent. Particularly with respect to prospective reviews. Because typically claims submissions for health insurers are done electronically and you're not submitting the actual records, typically, just the information about the claim. If there is an audit for each and every claim you submit to that payer, you have to include the full complement of records to support every single code for every service or every supply that you have provided to that patient on that date of service. And you have to make sure that the full complement of records get sent to the right place within the carrier, and then you have to track what their decision is, and then you have to appeal it timely if the claim isn't paid. And so there's a huge investment of time and staff that can flow from these sorts of audits. So what can happen, as you are going through this process, is if you can reach out to the carrier, which is what I do for clients every day, and try to figure out what the issue is, see if you can have a meeting with them, and maybe it's something that you all are doing that you can rectify. Maybe there is a way to resolve it. Maybe there is an issue there that you unwittingly have done that have caused the claims to get snagged in the process. And so trying to be as proactive as possible in identifying what the issue is, communicating with them, seeing if it's coding, what the threshold is to try to get out of that audit scenario. If there are opportunities to get education from the carrier as to what it is they want and need to get these claims paid, those are all very helpful tools to try to combat both the disruption, the cost and the manpower that's required to respond to these audits.
Morgan Ribeiro: I mean, it seems like some of the things that you both mentioned, that access to data and kind of this data analytics is maybe driving some of this activity on both sides. Any kind of observations on that?
Jennifer Weaver: Data analytics is a big driver. Especially on the CMS contractor side. But we also see, you know, the Department of Justice relying on it, to a large extent, to kind of bolster and back up investigations that may have been precipitated by a whistleblower, but then they're able to kind of ratchet up through the use of data analytics.
Sandy Heller: One thing that's important to keep in mind when you're thinking about health insurance companies is that a lot of these plans, employer-sponsored plans, are funded by the employer. And so these are employer plan dollars that are going out the door to to pay these claims. And health insurers are administering these claims for these employer-funded plans. And so these employers are their customers. And these employers are monitoring their costs, as all do. And so if you have a provider who all of the sudden the amount of urine drug testing that they're doing in a particular geographic region absolutely spikes through the roof, that's going to get the attention of the plan sponsor, that's going to get the attention of the carrier as well. Now, again, there may be a reasonable explanation as to why these these spikes are taking place. Or you may have a provider who is sort of on their own in a remote geographic location. So it may look as though there is an inordinate amount of claims coming from a particular provider in a location, and that may just be a function of where that provider is. But again, any sort of aberration in analytics spikes things like that increase costs that would cause a sensitivity to a plan sponsor is also going to cause sensitivities with with the health insurance carrier as well. They also look to Medicare to things that Medicare is focusing on and looking at. And then they'll go back and look at their own analytics, presumably, just like Medicare has done. And they may follow that lead as well. And so, absolutely, carriers are going to be looking at their own analytics to identify anything that seems like an aberration or spike in costs.
Morgan Ribeiro:And lastly, as we look at this as a trending area, what is driving so much of this activity specifically in the behavioral healthcare space?
Jennifer Weaver: I think what's going on, is the downside to what has been something that's really badly needed and should be looked at as a real bipartisan success over the years to get patients access to behavioral healthcare treatment, in particular, opioid addiction treatment. And so with all of that additional coverage coming online and now all the Medicare dollars and in addition to Medicaid dollars being poured into the behavioral healthcare industry, the downside of that is it's just going to lead to more government enforcement because the government enforcement always follows the money, whether it's warranted or not. So that's kind of my take from the government side of what's driving it, is there's just more of it. But it's wonderful that there's more of it because we really desperately need it.
Sandy Heller: If we see events, societal events, for example, the opioid crisis, COVID-19 and the pandemic, it is going to leave an imprint. It is going to provide an opportunity for bad actors in this space to engage in fraud, waste and abuse. And that is typically, on the carrier side, a huge impetus for a very laser focus on certain industries or certain types of providers. And so certainly in the addiction treatment space, there was a lot of that. There was a lot of exploitation. And from that was a very heightened awareness of cost and a very heightened awareness of aberrations in billing and treatment in that space from the carrier's own analytics, from information carriers were receiving just from what they saw the government doing and looking at as well. And so I think that was a huge precipitating event. And so behavioral space, sort of the hangover from all of that is there is still a significant focus on these types of issues in that space. And again, COVID-19 is a great example, even though that's less behavioral health, but all of the dollars that appropriately flowed to getting people tested for COVID and treated for COVID were exploited by certain actors in the space. And so now there is a bit of a heightened focus on some of the billing and treatment that ensued by even legitimate, compliant providers in that space. And so I think as these societal events happen, there's going to be a very profound footprint and sort of an extended hangover in terms of the things that providers are going to be asked to justify and the audits that are going to ensue.
Jennifer Weaver: I mean, it's almost inevitable that if you're a healthcare provider, you're going to have a run-in with the government, a False Claims Act investigation, a contractor audit. It kind of comes with the territory, unfortunately. And a lot of really great providers get caught up in what are often unwarranted investigations and audits that are driven by folks that don't have an understanding of behavioral healthcare. And so, my takeaway is that really the best thing you can do is just to take compliance seriously in your day-to-day operations, and to make sure you have a robust compliance program in place, that you're doing your own internal auditing and monitoring, to make sure that you don't have outliers, you don't have issues with, with certain providers or with certain employees that could get you into trouble. And even that can't guarantee that you'll never get caught up in an investigation or audit. But if you do have a really strong and robust compliance program, in the almost inevitable circumstance where if you do face that, then you've got a great story to tell. And the government does take it very seriously. And we've been successful many times in getting the government to stand down and to decline a False Claims Act case and to give the provider a clean bill of health when they do see evidence of a really robust compliance program.
Sandy Heller: Yeah, I would follow up with very similar advice, right, and that's awareness. And really being focused on recognizing audits early, and being intentional and informed early, and communicating with the carrier early, and doing the best that you can to make sure that you understand what an issue of concern is from that payer, and seeing what opportunities there are to try to resolve the issues early. To be very intentional and mindful around submitting records, around tracking decisions, around understanding what your network agreement if you're in network says around appeals and exhausting administrative remedies. And that goes for out-of-network providers as well. It's important that you have counsel who can guide you through these types of issues because again, a request for 10, 15, 25 records can turn into something very large and very impactful. And we understand that the last thing our clients want is to have a dispute with the payer. They don't want to be in arbitration or litigation against a payer, although sometimes that's how these things end up. But we understand that what our clients want and need from us, is a way to resolve these issues, resolve them as quickly as we can and, and get these claims paid. So having a very heightened awareness and understanding of what these things mean, and having resources at your disposal to navigate them, are key.
Morgan Ribeiro: Right. Well, thank you both so much. This is really insightful. And I think really valuable information for the folks listening in.
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