Episode 125:
Shutdowns, Telehealth & Enforcement: Compliance Perspectives on Current Events 

Welcome everyone to another episode of Compliance Conversations. I'm CJ Wolf with Healthicity. And today's guest is Brian Burton from Healthicity. We're going to have some fun talks because we we have been talking about some things that are, I think, are timely. And a lot of people are asking about it and talking about it. So welcome to the podcast again, Brian. I know you've been on before.

Well, uh, well, thank you, CJ. I appreciate it. Um, for those of you who haven't met or haven't seen me on podcast before, my name is Brian Burton, and I am the Chief Compliance and Privacy Officer for Healthicity. Uh, and CJ and I have done lots of content together, webinars, and collaborated on lots of things. And we even have a couple uh uh a presentation coming up in May where we're co-presenting together at HealthCon.

Yeah, exactly. Um, and Brian, you know, we were you've been faced with questions. I get faced with questions all the time from from clients um about the current environment. And so we're gonna preface this by saying, look, we're not trying to make a political statement one way or the other, but in reality, people are asking us questions about things like the shutdown, the government shutdown. So we're recording this on October 21st, um, and we hope to get this recording out quickly. And so, you know, again, things could change, you know, in a heartbeat. But um, you know, these are the we're getting questions about the shutdown, about um, you know, are we seeing, can we predict what the administration's doing and how its effect on compliance and all these sorts of things? So, Brian, why don't if you don't mind starting, you know, with just kind of, you know, you've been asked questions, and maybe you can kind of frame that as generically as you want. And some of the research you've already done, and because I think people are asking you, you know, because you're the compliance officer for healthcity, you know, what does the current environment have? What effect does it have on us?

It's a great question. And and depending on where you are in the healthcare industry, this may have little to no effect to you, or it may have marginal to moderate, or it may have a significant impact. It really depends on where you are in the scale and the healthcare within the industry itself. Um you know, I've talked to I've talked to a number of people. Um, everything from uh individual uh organizations who are wholly dependent on um on government funding to manage and operate their not-for-profit businesses uh and and services to uh individuals in in high regard that are in direct communication with lobbyists, right? And so that spectrum is broad. Um and again to CJ's point, not to not to lean one way or the other. CJ and I were talking earlier. I remember my days in the in the army where I can remember being taught it doesn't matter who the commander-in-chief is, and for those civilians, that's the president of the United States, it doesn't matter who is at that seat. We have a duty to do our jobs under the under the uh what's called the uh uh the code of ethics for the military, uh or the uh uh drawn a blank. But anyway, the code of ethics for the military. And and our jobs here as compliance officers are really not any different, right? Regardless of who the who's who what what party is leading the administration or the executive branch, we still have a duty as compliance professionals to be unbiased and uh and objective in all things, right? And so the the law is the law, regulations and guidance come to us, and it's our duty and responsibility as compliance professionals to do the best we can with our organizations based on those requirements. But to that point, there are influencers, right? So we see uh you know you we see uh the government shutdown is a great example, how what functions of the government are inoperable or on pause, which functions are operating, how is that impacting? Uh you know, what happens if you call the OCR right now, right? If you call and report a complaint, um who is who's reading those? We're going in, as CJ mentioned, it's October 21st today. We're we're nearing the third week of the shutdown. How much of a backlog in reports from an OCR perspective, a false claims perspective, the uh the STARK-related self-disclosure protocol, right? All of those things are gonna queue up for a period of time. And how what kind of a backlog? And so I don't know that it's gonna have an immediate impact so much as what will the trailing impact be to us in 30, 60, 90, and 120 days from now. Exactly.

Well, and I'll and I think you're absolutely right. I think a lot of it's still to be seen. I'll give you just an anecdote, though, of one client that I have that it is immediate. So I have a client that um is under a CIA, and um we're we're gonna be doing um the I'm gonna be doing their claims review, uh, you know, as a part of the IRO, um, independent review organization. So and and there, you know, when when the OIG sets up CIAs, they're they're done by yearly periods. So if you're under a five-year CIA, you know, at the end of the first period, which is like a 12-month period, the clock starts ticking. You have 60 days to produce the that year's report. Um, and when you're doing a claims review, OIG might might define what your population of claims is. Or you might want to ask them, what is my population of claims? Well, with this particular client, they've told me they've reached out to the OIG and they haven't heard back. So in a shutdown scenario, to your earlier point about OCR, is somebody answering the phone? You know, are they are they working? Um, maybe, and I don't know all the details, I don't have any inside knowledge as to what the OIG is or isn't doing. I just hear it from this one client. And so, you know, that's kind of a a practical example of just communication.

Exactly. And you know, understanding what, you know, in that particular case, and I'm thinking of one particular uh client that I have too, right? Their report is due next month, uh, or their annual report next month. Um, what will that call uh what will that create? And will this three week, if it depending on how long it takes us to get back to normal operations, will that create an excuse or delay? Will there be a side letter that's written and says, you know, the the date has shifted some because of this reason? All of those things are worth considering, especially if you're waiting on information and you can't submit it.

Yeah, yeah, exactly. Well, you know, and Brian, recently we on the the show we had um the the director of the TAF, which is the I think it stands for taxpayers against fraud. It's it's kind of the it's the whistleblower bar. So it's the organization that uh represents whistleblowers uh under the False Claims Act. And we had we had her on as well as another individual who who blew the whistle on a healthcare company that she she was in the compliance department. And they were talking about them. Uh and I've talked to other attorneys in that bar, and they just said, from a practical sense, sometimes the DOJ, I mean the DOJ has limited resources, right? And if those resources are shifted to other priorities, then you know the speed at which things might happen could be slowed down in in some of these cases, right? Like the courts might not be as affected as much, but the the worker bees and the DOJ, right, they have limited resources. And if if they're if they've been told to shift attention to something else, it it could affect those types of things. Again, these are generalities, but that was another thing that I thought about when we were talking about this.

I and speaking of that, the the human side of this, right? I think in tying this back into the uh into what's called the one big beautiful bill act, I think uh, you know, most of those reductions have come in the form of staff reductions. Um and we've and we've seen very clear messages from the OIG and the DOJ that the fraud, waste, and abuse and enforcement for fraud, waste, and abuse will continue uh unequivocally, right? Uh you know, and I can remember the last couple years at the HCCA conference uh where the DOJ and the uh and the OIG are both really posturing themselves as profit centers compared to uh compared to other functions of the of those executive branch governments, right? Where the enforcement side is actually generating more revenue and and and penalties and claims um than they than it cost them to operate. That's right. Right. And and the government hopefully is going to make good sound business decisions in those regards, right? And so while there are staffing changes, we are seeing a consistent delivery of enforcement actions. One of the things that I looked up uh a day or so ago was uh the number of enforcement actions related to health care. Uh in in 2024, January through October, there were 650 healthcare-related um enforcement actions. That same period this year, there are 685. Uh, and so we're not not looking at you know some big downturn. Now, there's an argument to be made, you you know, how much of that was already in place and and developing beforehand. Um, but again, if there was some monumental shift from an enforcement perspective, you would see all that casework that was done, and then it would be sitting on a desk and not being executed.

Exactly, exactly. And you know, to the point of like the False Claims Act, at least, um and this has been a trend even across administrations and even before the last year or so. Um, the the the there uh again with this with this whistleblower bar, they've said that more and more uh times that the DOJ declines to intervene in a case. That doesn't mean that they say the case has no value, it just means they might not have the resources to pursue it. And so more and more uh whistleblowers are are pursuing it with their counsel on their own, which is which the law allows if the DOJ declines to intervene. And so then you get back to kind of what I was talking about, is then now the DOJ's resources aren't sucked up so much, but and and and people are predicting that the courts really haven't been affected too much, and so people might be taking those cases on their own. Um, again, this is a lot of I'm just kind of reading tea leaves and guessing and trying to find my crystal ball, but I can't find it in the office here.

Yeah, I think I think you know, for me it's it's almost, and I'm not a political science expert by any means. I'm not even a I wouldn't even consider myself an average political science person, but this is a little bit of an editorial opinion and observing what's going on. But the your comment reminded me also of uh and we talked earlier about uh the the HIPAA final rule, for example. Um there's a you know, there's been a delay. Uh it it hasn't been released, according at least to the press releases that we taught that we heard earlier or late last year, uh mid last year, I guess. Uh, and then you know, we're still late, but will this government shutdown impact that further? And then the other thing I have a question, you know, considering the delay between the final rule and its and its enforcement period, it's so much time has gone by since the final rule was drafted. Are we going to enter another draft period? Technology moves so much faster than our legislative process. And so, how you know, will they go back into another comment period? And again, that's purely subjective. I have no indications of that, but you know, common sense tells me that you know, even if we publish the final rule as it is proposed now, will it already be out of date? And do we need to reconsider it?

Yeah, that's such a good point. Yeah, I don't know either, right? Like, but but that's going to be interesting. And we, I think we we talked a little bit about this before we started recording. Was you know, over the course of 25 years, I've been doing this. We've seen delays and and rules and that sort of thing. And I've never really known is that delay, you know, like a delay in that agency's ability? Is it something coming from the top down saying, no, we want to switch gears on this whole thing? Um, and so I've never really had any personal insight into any of that. Delays aren't unusual, but uh to your point, it's like where's the delay order coming from if there is one and those sorts of things?

Yeah, that's such a great point. And and and we're subject to the recency bias, right? That we have like what's in the news today, and does that have an influence? But to your point, and while I don't quite have 25 years, but I have almost 20 and have seen the same thing, right, through several administrations on both sides of the aisle, um, and and a delay here in HIPAA or a CMS rule, those are not uncommon. Um but how are we how are we hearing that message uh from our media sources and and and are we allowing a biased uh uh perception to influence our our interpretation of that delay?

Yeah, such good points. Um, you know, we're gonna take a quick break, uh, and then we're gonna come back and keep talking about this interesting topic. Hang in there, everyone. Welcome back from the break. Um, we're talking about a topic that I think is on a lot of people's minds, right? With with kind of government influence shutdowns, you know, leadership, uh, what are the what are the forces at play here and how does it affect compliance? And and uh Brian, one of the things that I've that came out a couple of months ago was, and if this gives us gives us any indication about, you know, will enforcement stop or slow down or shift gears, um, I mentioned that the Medicare Advantage space, right? Um, and and you know, even before the current administration, the OIG announced that look, Medicare Advantage is gonna be our focus, right? Um and but uh a few months ago, the administration announced that um they were going to beef up that team, right? So for Medicare Advantage audits, basically. Um, and you know, the team was in the double digits, pretty small, and they're gonna, you know, they announced that they're trying to hide hire all these auditors up to over a thousand or something like that. And so that's an indication that enforcement in that space is gonna increase. We already knew it was gonna kind of increase, regardless of who was in uh the executive branch, but um that announcement was specific to the current leadership. I don't know if we've seen, I don't know, I haven't seen any more announcements. I don't know if if those hires have taken place and if that enforcement is actually proceeding, but the wording in that announcement was pretty strong.

And even if it's not immediate, right? And the government shutdown may impact the hiring process, right? I can't imagine it wouldn't. Um, but I think that's worthy of us continuing to monitor for the coming months uh to see how that does ramp up and what we would expect to see from from those enforcement arms. Uh, you know, CMS and was very clear in the last ACCA conference about you know uh concentrating on fraud, waste, and abuse and extending their their assistance to the Medicare Advantage plants, right? So they want to work in cooperation uh and to establish a very clear path to preventing, detecting, and resolving fraud, waste and abuse. Exactly.

Yeah, you know, and I've heard those phrases and that rhetoric with with most administrations because it really is a bipartisan message, right? Like I don't think there's been a single administration that says fraud, waste, and abuse is good, we're okay with a little bit of it. Or, you know, I mean, it's like I think everybody agrees look, these are precious dollars, these are precious resources, we want to safeguard them, and so we want to go up against any bad actor. And that's a good message for anyone to say. So I it's just what's happening behind the scenes, I don't know, right? The specific messages.

Yeah. So I have a question for you. Um, what would be uh your what what source would you look to to continue to monitor these developments?

Yeah, you know, I think um I think it is important to be to be watching, you know, what what's happening with the shutdown. Um again, by the time this airs, maybe the shutdown's resolved, maybe it's not. Uh, but I'll give you an example of one thing that um I think does have bipartisan support. I was at a conference uh a little while ago in San Diego where uh one of the speakers was talking about telehealth. And um a lot of us know that that can't so during the public health emergency, telehealth regulations were very uh loose, they were loosened, right? And so it was easier to do telehealth and bill for telehealth, and and Congress had to keep kind of doing like some sort of band-aid legislation for that to continue. Well, with the shutdown, so there was legislation in the pipeline and it had bipartisan support to keep telehealth expanded in a certain way, but because of the shutdown, that was not passed. CMS has published on their website on telehealth, they they they were anticipating their message was, you know, maybe we're gonna hold some claims. We're recommending that the Macs hold claims because and I'm I'm kind of interpreting and paraphrasing here, um, because Congress usually backdates their legislation and says telehealth extension has happened. But I've got clients asking me, you know, what do I do today? Well, I can't really predict it. You can either, if you bill them and they get denied, you have to go through that process. CMS was actually recommending that you hold claims, but how long can people hold claims? Other clients are saying, because when when when that extension ended, we went back to pre-public health emergency um telehealth regulations, which was more it's limited to certain rural areas, it's limited to certain services, and it you had to have an originating site, whereas during the public health emergency, you could do it in your home. Um, and so lots of major changes. The telehealth um kind of uh loose, right looser regulations have existed for so long because of the public health emergency that most of us feel like this is the norm now. And we forget that legislation was never passed, it was always public health emergency, and then piecemeal legislation passed. And so to your question about where should we look, I I've been looking at at sites like that. CMS has posted certain things. Um, you know, I I don't think there's a site that that tells me um what are the politicians gonna do. I don't think any of us have that site, right? But yeah, I think all we can do is what we've kind of done in the past is is look at the actual agencies to see to see what they're saying and and just check those on a regular basis. I don't know. Are you aware of any other magic site that's gonna tell us?

No, I think source of truth there for me always always comes directly from OIG, CMS, and DOJ. Um and there are lots of really good um you know healthcare-centric law firms that put out great content. Those are great, those are great sources at the moment while we're in shutdown because they're still operating. Um I just got my bill from my my attorney, uh, he knows who he is. Uh, you know, the shutdown's not stopping him. But that that also ties into something else that you said earlier that uh that I wanted to to expand on a little bit, because as compliance professionals, we we're always balancing uh patient care, compliance, and the financial health of the organization. And if we get into a scenario where we're really genuine, we're holding claims for an extended period of time, right? And while we will while most organizations, their ethos is always gonna be put the patient first, um, if you put the and we will, right? But there's also a financial component to that. Whether you are for profit or not for profit, you there's still a financial component to uh operational expense, paying the workforce members who are providing the care. And if you hold claims too long, that you're gonna you can put, especially the smaller organizations who operate on thinner margins, you can you can significantly impact the delivery of care in a community if we're not careful, right? And I think that's why it's it's why it's why it is important for us to continue to monitor the shutdown and hopefully that you know everybody will get on the same page and and we'll get back to normal operations soon. But it it as it continues, it has uh a real systemic downstream effect all the way down to local communities and their ability to deliver care.

Yeah, because you know, because cash flow is important, like you you can maybe hold claims for a couple of weeks, but look, the lights need to be turned on. And if you don't have lights on, you're not gonna give care to anyone. Um, so on that particular issue with telehealth, so CMS is saying, look, we're in this nebulous area, you could hold claims, we're recommending Macs to hold claims for a while. What I've seen though actually happen from, and again, this is anecdotal, but some practices are canceling telehealth services and they're saying come into the office. So that so they are getting to that point, what you just said, where some entities just say, look, this is too unpredictable. We're just gonna say, look, no telehealth for now until the government figures out what they're gonna do and will this bipartisan legislation pass or not? Um the people that I've talked to say, look, once one concept gets going again, this legislation was on track for being passed and signed. Uh, because both parties think telehealth is is a good thing. Um, now could that be used as a political, you know, leverage tool? Probably, but it it seemed like most people were moving in that direction before all this happened. But to your earlier point, things might be delayed, right? There could be this backup. And uh yeah, so all really interesting things. And to your point, you know, compliance often gets asked, what are the regs? What are the rules? Because we need to make a business decision. And that's what some of my clients have been asking me as well. Is they're let's say, look, as of today, if I were to see a patient via telehealth in these circumstances, can I bill? Right. And so it's like, well, here's all the options. Now you have to make a business decision.

Yes, and that's a tough, and it's a tough one. Um, and and my recommendation is always go back to your clinicians. Uh do what's best for the client uh to the best of our ability. Uh and and with the client and their care in mind. And and telehealth and especially telehealth in a behavioral health setting is so critical. Um, it it has become, you mentioned earlier some uh something earlier about it's just expected, right? We we have evolved since 2020 with COVID. Right. And you and I are having this podcast via Zoom, and it's and it's animated. I can read your facial expressions, you can read mine. Those are the some of the same components that that caregivers get in a behavioral health setting. Uh and having this technology available to that segment of the patient population is is becoming critical, if not, or becoming important, if not critical.

Yeah. You know, and we were also talking about just from a compliance standpoint, information gathering. You know, we were talking about conferences and and you know, at a lot of the conferences I've conferences I've attended in the past, you know, you had representatives and speakers from OIG and DOJ. And it seems like the most recent conferences, the number was down to zero. Um now, I don't know if that was just initially they all, you know, the executive branch wanted to get all their messaging straight and they didn't want anyone talking until they they knew what the marching orders were. So I don't know what will happen in future conferences. Um, if we see it, you know, for two or three conferences, then that's kind of a trend, right? Like, uh, and I think we, you know, we were talking about one particular conference where the only government speaker, I think, was from CMS and it was a recorded message and and those sorts of things. And so I I kind of from a personal standpoint, I kind of miss that, right? Where you you're hearing directly from DOJ and and OIG, for example.

Well, even in the most recent uh uh in the upcoming DOJ conference is all virtual this time, where it's not. And you and I last year you and I co-presented uh with a member of the with a member of uh uh of the OIG. And this year that that conference is all virtual. Uh and so we'll see how this how this evolves. And you know, as compliance professionals, it's it we have to not only keep apprised of all the rules and regulations, but this is a reminder that we also have to be in tune with the news and and what's evolving within the regulatory space in general.

Yeah, and and and maybe the channels of information are less formal um and more anecdotal. Like so instead of you know, DOJ sending a formal speaker and giving a formal presentation, maybe it's more back channel type of stuff. Uh people know people and and they're talking to people. It's but that information is sometimes hard to rely on because it's it's more um anonymous information because they're not allowed to officially say X, Y, or Z or something like that. So it'll be it'll be interesting. Um, but in the in with at the high level, um, most people that I've talked to say, you know, the tone and rhetoric might be different, but on the ground, they're not seeing any significant changes yet. But it it you know, that's this might be something that has to play out. And to your earlier point, a decision made six months ago might we might not see it today, but as time goes on, you might see backlogs, you might see shifting of priorities and those sorts of things. And so, you know, it's interesting. We thought we would talk about it today today because we're also wondering, and and I would love for our listeners to comment and that sort of thing. Again, we're trying to keep it apolitical, um, but but just more from a standpoint of you got a job to do, we all have a job to do. It's it seems like some of that is changing, but how do we keep doing our job ethically and appropriately when things that we were used to might be changing?

Maybe we need to uh uh you know, within a week or two, or maybe a month after the shutdown, come back and circle back. Uh we can look at some of the uh some of the audience comments and reflect on those and and really come back to this subject post-shutdown and see how how the landscape has changed.

Yeah, exactly. Exactly. Well, we're kind of coming towards the end of our time. Any last minute thoughts or I mean you you kind of were just giving some there, but you know, we'd love to hear if you have any last-minute thoughts or guidance, or you know, what you're telling clients, what you're telling people internally, um, any words of wisdom in that regard?

Um patient care first, right? Always to the best of our ability, make the best decision that's going to increase the probability of the delivery of care. Um everything else will be uh it can be managed. Uh, you know, we we can have an overpayment and take the right steps to correct it. We can we can hold claims for a period of time and and recover, right? Uh get together with your leadership teams, talk about how this may or may not impact you, because it may not. And then in other ways it may. Um, but you know, as a compliance professional, be the champion. Uh pull the pull together your your team, your executive leadership team, and talk about how how are we responding to this regulatory change in this space, uh, and then develop a response plan and then keep your finger on the pulse and to the best of our ability. And and but again, circling back, do what's best for our patients uh and and to the best of our ability, deliver care.

Yeah, you know, and I always, again, kind of just going, I'm just thinking, taking a step back and looking back 25 years, uh, compliance professionals often have had to be the messenger of some sort of regulation or current news or this and that. And I've always had to say, look, I didn't sit around over the weekend and create this rule or law to disrupt your life. Uh, and so really it's no different. It's like to your the way you started the podcast was, you know, we need to do our job. We have to, whatever the regulation is. We might disagree with there's been lots of regulations that I've disagreed with personally over the years, but that doesn't change the fact that it's a regulation. And if you don't follow it, it's at your own risk, right? I mean, those might be risk decisions of, but but don't let your personal feelings about whatever's happening cloud your judgment of a from a compliance profession. Standpoint. And I've just noticed that a lot of people are very have a lot of people have very strong feelings about the current environment. And that's fine. But I my personal belief would be let's separate those personal feelings from our professional responsibility. Yes, absolutely. Pursue what you feel passionate about personally. I don't know. I'm just trying to say don't let it affect your your compliance judgment.

That's a great point. Um, and this has been so much fun. Uh we we don't do this often enough. I know we have lots of guests all the time, but uh welcome to spend some time with you anytime. It's this has always been it's been enlightening for me, and hopefully it's helped our audience.

Um yeah, awesome. Well, thank you so much, Brian, for your insights and you know, the experiences that you have. And thank you to all of our listeners for for listening to this episode. Brian and I were kind of wondering, do we even bring this up? So, you know, maybe you give us feedback of, you know, don't even go there, guys. Maybe we've opened a uh a Pandora's box or a can of worms. If so, so be it. But uh people have been asking me about it, they've been asking you about it. So we thought we'd at least talk about it. I don't think we've given anyone any definitive answers necessarily today, but uh it's what's on people's minds. So thank you for for taking the time to do that.

Absolutely. Thank you.

And uh to all our listeners, if you have other topics that you'd like to hear, or if you have guests that you know would would make good guests, we would love to hear about that. Um, and maybe we can have them on the show. So until next time, everyone, take care.