Episode 130:
Doing the Right Thing the Wrong Way: Refunds in Healthcare Compliance

Episode Chapters / Timestamps 

00:00 — Introduction 
02:00 — Common refund misconceptions 
04:30 — Manuals vs. regulations: why hierarchy matters 
08:30 — The 60-Day Rule and lookback confusion 
12:00 — Medicare vs. Medicaid vs. private payers 
16:00 — Documentation gaps vs. overbilling 
20:00 — How to structure refund communications 
27:00 — Avoiding privilege pitfalls 
32:00 — Final recommendations for compliance leaders 

CJ Wolf: 00:00 

Welcome everybody to another episode of Compliance Conversations. I'm CJ Wolf with Healthicity. And today's guest is David Glaser. David, welcome to the show. Dr. Wolf or CJ? Yeah, CJ is great. And thank you so much for taking the time. I know you're busy, you got things going on, but I know you also have a lot of expertise. And so we appreciate your willingness to share. And maybe before we jump into kind of some of our discussion points, could you share a little bit about yourself? What's your background or anything you want to share? Sure thing.   

David Glaser: 00:32 

Well, first of all, thank you so much for having me. It's nice to talk to you again. I'm a lawyer at a firm called Fredrickson, based in Minneapolis. Do Health Law really love helping people understand federal regulations? And I think on the fun side, I would say I am a longtime storm chaser and lately a pretty serious Aurora chaser. What was the last one? Aurora, Northern Lights.   

CJ Wolf: 00:55 

I'm really into the Northern Lights. Anything in the sky, right? You know, that was on my wife's um lifetime, lifelong, you know, list. We last year we we took a last-minute flight up to uh Fairbanks and the first couple of days didn't see anything. The last night we got beautiful stuff. It's it is it's really cool when it when it goes hard to predict, wonderful when it happens. Oh, it's just so amazing. I'm kind of addicted myself. So that's cool. Storm chasers. I'm also from the Midwest originally. So are you chasing tornadoes? Chasing tornadoes. Cool. Well, be safe. Thank you. Good, good, good. Well, thank you. Um, so we know you work with a lot of different clients. You think you see things that go well and go wrong. Maybe we could just start by talking about making refunds. You know, a lot of us in compliance, um, we're we're proactively doing audits. We might discover something, you know, refund. How far do I go? What do I do? What mistakes? So, any thoughts on kind of um some of the common mistakes you see people making? Absolutely.   

David Glaser: 01:59 

So I mean, I guess they kind of fall into two buckets, right? There's the when do you refund questions, and then how do you refund? And maybe it makes sense to start with the when do you refund, right? Perfect. So in there, I think I I would say that there are probably four general things I see where people are making mistakes. Two of them where they are um refunding when they probably don't need to, and then two where maybe they're not refunding and they probably should.   

CJ Wolf: 02:26 

Yeah, let's talk about those. Uh, maybe we we we well, you tell me where you want to start because I think all of us probably come across examples where both of those might happen to us. Yeah, okay.   

David Glaser: 02:38 

Well, what that we'll start with maybe the ones where you refund and shouldn't. So I would say the number one thing there, people often refund based on something they see in the Medicare manuals. And I strongly discourage clients from ever doing a refund just because something appears in the manuals. And the reason for that is anything you see in the manuals is guidance. So it's just worth understanding the legal hierarchy. You know, we've got lawyers listening to this who might already know this. We have non-lawyers listening to this who might already know it. But just it's it's worth a quick review. You got the constitution at the top, then statutes. Those are laws. So at the federal level, things passed by Congress, at the state level, things passed by a state legislature. Then you've got regulations passed, you know, by in the code of federal regulations at the federal level by CMS, uh at the state level, and the state administrative code. And then finally, national coverage determinations. Those things are all binding. And unless, like, unless a statute is unconstitutional, it's valid. Everything else we talk about is just guidance. And part of how we know this, like I had a case once where my client had relied on something in the manuals, and it gave them an appeal deadline date and they relied on it. And the government argued to the Court of Appeals you rely on information in the manuals at your own peril, because they said the regulation controls. Um, and that seems really to me, that's extra troubling because you think something put out by the government, you can rely on it, right? They're telling you when to do an appeal. And what I had told my client is we can't lose in this appeal. Um, and then we did. Uh, but I was still right because when I said to them we couldn't lose, what I meant was either we'll get our appeal back or we'll get something from a court saying manuals aren't binding, and that's of value. And we got the latter. Awesome. So that's good advice. Uh thank you. So and I'll I'll give you some real-world examples of where I've seen. Like in the old days, before the two midnight rule came out, so we're talking really old days. What is that? 12 years ago, I think, right? Yeah, right. The manual used to say that you should admit a person as an inpatient if they are, if you expect them to stay overnight, if you expect them to be there for 24 hours, and then there was a third test that it's complicated. Now, first off, that you fair banks is perfect for this, right? Because I think is Fairbanks north of the international date line? Or not are the I don't know, but it's the perfect circle? Yeah, the the the time we were really close to it. Okay. So it it but where we are now, there overnight and 24 hours are never the same, right? Fair banks, I think they might be. I think at this right right now, overnight and 24 hours might be the same. That alone should have been a reason that no one ever refunded on one day stays, but a whole bunch of people did. But the second reason they shouldn't is it was only in the manuals. Um, second example is the teaching physician rule. So if you read the teaching physician regulation, and I know you know this, you have to be present for the key portion. You don't have to be present for the open and close, is what the regulation says. The manual says you can't have three cases at the same time if you do it supervisory. Well, if I don't have to be there for the open and the close, we can have one in the open, one in the close, one in the key. That's three cases. The regulation says that's okay. The manual says it's not. And in a situation like that, the regulation controls.   

CJ Wolf: 06:17 

Ah, see, I think this is really good, you know, for a lot of us who are not attorneys, but we are, we're trying to be honest, we're trying to do the right thing. But I do think it's valuable to get legal advice like you, because from someone like you, because that can save us a lot of headache, right? Like we might have good intentions, but really getting a good legal opinion on when it's required, when it might not be, and you're gonna give us advice, right? The client still gets to decide. Absolutely. You give you give good advice and you can tell the stories like you're telling right now, which is this is where it could go wrong. This is why you might not want to do it, this is where you might want to do it. And and so I I really appreciate that that perspective.   

David Glaser: 07:01 

And I can't promise the good advice, but I think you said the really important, you said the most important thing, right? Which is you're trying to do the right thing. And trying to do the right thing isn't just giving money back to the government, because part of doing the right thing is getting paid for the work you really do, right? Those are both part of the right thing.   

CJ Wolf: 07:19 

Yes, like, you know, and that's such a good way to look at it, is, you know, and I think the government probably believes this to some extent. Um, like when somebody really gets into trouble, you know, I've seen some settlements where they say, you know, uh the settlement amount was partially determined by, you know, the financial ability to repay. Like, I don't think the government wants to put hospitals out of business just for the sake of doing that, because the overall goal is to treat beneficiaries. You know, obviously, if someone is super bad and they're intentionally doing evil things, then yeah, the government's gonna try to put them out of business. But those are such extreme cases, right? And so I think you're spot on. We need to also protect our own financial ability to provide services. That's important to do for the people we serve. Exactly.   

CJ Wolf: 08:06 

Yeah.   

David Glaser: 08:07 

So and also there were two ways people overrefund. The second one, and you you alluded to this early on, how far back do you go? Right. Yeah. And I think most people think the answer, and so first, I am often sloppy, and I'll forget to say, are we talking about Medicare? Are we talking about Medicaid, private pay, right? You always have to focus on what? And so I so I should make it clear, I'm gonna talk about Medicare for a moment here. So for Medicare, people think that, hey, the 60-day rule says you have to go back six years, and I get why people think that, because it is in the 60-day statute, but I think most of the time, in fact, almost always, people should only go back 48 months. Um, let me explain why. What the 60-day rule says is you have to report and return an overpayment, it then defines an overpayment as money you're not entitled to under a federal health care program. So Medicare says that generally speaking, they can reopen a claim for any reason for one year. For 48 months, they can reopen a claim for good cause. And then if there's fraud or similar fault, they can go back seemingly indefinitely. But that means unless there's fraud or similar fault, Medicare can only take money back from you for four years. Yeah. If they can't take the money back from you, I would say you're entitled to the money. And then you don't, under the 60-day rule, have to refund money you're entitled to. It's a it's a statute of limitations, right? Yeah. So so I tell people to go back 48 months. And I will mention it, I I've got a memo that explains this, and I send it to people for free. So if someone emails, if they're like, if you're skeptical of this and you're like, David, I do not believe you. If you send me an email, I'll send you the legal analysis on this. Um and that's a that's just a freebie for your for your listeners.   

CJ Wolf: 10:05 

Well, and I appreciate that, first of all, and I also like what you're saying because in most proactive compliance programs, most organizations are ethical, right? It's mistakes that we make, or we we're not dotting the I's and crossing the T's. That we might not be entitled to some of that money, but that's a far stretch from saying it's fraud, right? And and not all refunds are fraud. And I would probably say, in my experience, most refunds are not. Most refunds are honest people trying to have a good compliance program, trying to show good faith. Um, but I like your perspective of yeah, good faith, but don't shoot yourself in the foot either. I mean, really, who if you're committing fraud, you don't refund because you were committing fraud, right? 

David Glaser: 10:47 

Like it's almost almost inconsistent with the idea of a refund. 

CJ Wolf: 10:51 

Yeah, there you go. Good, good. What else on this topic? Anything else? 

David Glaser: 10:56 

Well, just you know, I I've mentioned Medicare. I didn't talk about anyone else, and I probably should. So Medicaid is tough because it's a state-by-state thing. So I believe in New York State they can go back forever. Um, some states, like Iowa, I think explicitly follows Medicare. I'm based in Minnesota, where there is actually like nothing. Um, and so you have to know what your state rules are. Wisconsin, for example, I think if memory serves is five years, but you gotta know what your state is. A lot of private payers only go back 12 months. And that's kind of surprising to me, at least. Maybe it's for the people, but a lot of private payers only look back a year. Um so those are my unnecessarily refunded ones. I guess we should talk about the uh people's refund. Yeah. So please, first one, I I think some people say, hey, I only care about Medicare and Medicaid because those are the ones that put you in jail. So I don't refund for private payers. And in some areas, I am, I think people would say, I don't know if aggressive is the right word, but I am I am taking positions that are not widely held in terms of where I'm saying I don't think you need to refund. Go back 48 months, not six years. But I I try to be intellectually consistent. I don't view myself as aggressive. I try to be principled and hold to the law. And if I've built a private insurance company for something I shouldn't have, I want to, I want to do the right thing. And so there, I would include private payers in my refunds. Um, you know, I just I'm a fan of being principled and intellectually consistent, and I think that's how you stay out of trouble.   

CJ Wolf: 12:33 

Yeah. Well, to that point, let me ask you, because I know some states have their own, you know, false claims act. Uh, and I my understanding, you correct me if I'm wrong, is some of those states, those false claims act or other statutes also apply to commercial payers. Correct. You are not right.   

David Glaser: 12:51 

Okay. As usual, you are right. And uh, and that's exact, that's important.   

CJ Wolf: 12:56 

Yeah, so you so you'd want to make sure, like, you know, I when I when I am at conferences and I hear people ask attorneys hypotheticals, I always feel bad for the attorneys because they're like, well, it depends. And people don't like that answer, but it truly does. Because are you in California? Are you in here? Is it what payer? This and that. So these are always fact specific, right? And and context specific. So exactly. That's an important take home here.   

David Glaser: 13:23 

Um, I think I left out one other one, which is so this one gets into it. This one gets, but sometimes people think, hey, if I've looked at five claims um where you know we the documentation is crummy. Um we're we're just gonna fix those and we won't go back and deal with the past. And I think that could be problematic.   

CJ Wolf: 13:49 

Yeah. I I tell people that as well, because people ask me that. Um, and especially when there's probably a good suspicion or good evidence that that mistake is probably always happening. So I'll give you an example. You can tell me if I was off base on this, but I had a client who, you know, they had flipped a switch in their electronic system where it was always appending a certain modifier that would bypass Medicare edits and it would always get paid. And I said, Well, when did that switch get flipped? Oh, we know exactly. It got flipped 17 months and three days ago, right? So I'd like, well, you found two of them in this little sample. You done you did a little bit of due diligence diligence and you found out how it got there. I think you kind of have to go back to the day that it got the the switch got flipped.   

David Glaser: 14:40 

Totally agree. You know, another place in a place where it comes up a lot, and I'm sure you deal with this all the time. I actually deal with it less than I used to because of the change in EM coding, but ENM services, right? And so I have been saying for my whole career, if it isn't written, it wasn't done, isn't the law. You don't have to refund just because you're missing EM documentation. Instead, there's this question did you do the work? If you did the work for Medicare, I gotta clarify again, because Medicaid in a whole bunch of states says you got to have documentation, but let's let's throw Medicaid aside. Medicare does not require documentation for most services. Um, Medicare requires documentation for teaching physician services, anesthesia, um, I'm feeling I'm oh, shared split shared has a documentation requirement. And the existence of those documentation requirements is pretty strong proof it isn't a general requirement. So if we find a doctor and she's all she's got crummy EM documentation on five of ten claims, uh today, I'm gonna assume she's got the same issue going back. Now that does not tell me we need to refund yet. To figure out whether we need to refund, I need to know did we overbill? That is, we billed for a four and she did a three, or did she underdocument she did a four, we have documentation of a two, but a four was done. If it's that's right, underdocumented, I don't think any refund is necessary, and we don't have to go back. If we overbuild, I don't think we get to say, well, we look at these five, we're just gonna do those five and ignore everything that happened in the past. So that's the kind of intellectual consistency that I would shoot for.   

CJ Wolf: 16:20 

I love it. I love it. Um, we're gonna take a quick break, everybody. This conversation is going so well and so fast. I'm uh I just want to make sure we're staying on schedule for everybody listening. We'll take a quick uh break and we'll be right back. Welcome back, everyone, from the break. We're talking to David about uh some really interesting, I think, real life scenarios. He's dealing with this with clients and he's got a lot of experience here. Um, let me make sure, David, before we move on, did we kind of hit all of the points that we thought would be important to talk about with kind of those repayments? Yeah, I I think so. Okay. Um what um so I wanted to ask you this because you mentioned it before the break. Um, because it always irritated me a little bit when people you see, you know, compliance folks doing training, not documented, not done. You kind of referred to this already. I I like from a clinical standpoint, I have to go out and tell clinicians you didn't do it. I'm like, that's accusatory. How do you know they didn't do it? They may have very well did it, right? They might it might not be documented the way you like it, but there may be supplemental documentations from somewhere else, and and it could show and you could have witnesses that can say, no, it was actually done. So and I know what coders and compliance folks are trying to get across. They're trying to get across the message, you know, in a proactive way. Hey, let's document the best way we can. And I agree with that, right? Proactively. But when you get to the point of refunds and and and putting things back, don't follow that guidance. And I think that's what you are referring to, is that's not necessarily true.   

David Glaser: 17:52 

I think that's exactly true. Um, and you know, and I think the question is how do you figure out like what someone did? Is kind of, you know, it yeah, which is kind of a hard question. I mean, but one thing you can do is ask them, right? That's right. You know, um I I can think of so one real world, this is an old one, but like 20 years ago, I had a patient who had called up and she said, I got billed for a complete physical, I didn't remove any clothes, right? Um, and that's fishy, right? Except the first thing you gotta consider, well, what if the was the code based on time, right? You can have a counseling visit, no clothes removed, totally appropriate to bill. Um, unfortunately, that was not the case in this one. Um, and in that one, it turned out what was happening, I think, was we had a template that was causing exams to be documented when they were not. But, you know, I I think you could, and I don't know how it if do you have any thoughts? Like, if I'm trying to figure out if a doctor really did something, you know, like if I'm trying to figure out if their coding is reasonable, do you have any wisdom on how you do it? I got a few thoughts, but I always look for others on how you figure it out.   

CJ Wolf: 19:02 

Like I um, you know, part of it is I I try to rather than accuse, I try to discover first, right? Like I like you were saying, just ask. Like, so I go to the doctor and I try to learn, okay, in the workflow of, I don't know, doing an angioplasty or whatever the procedure or type of service is, in your workflow, let me learn clinically. What do you normally do? Oh, well, normally the nurse does this, the tech does that. Oh, do they document things? Yeah, of course the nurse documents vitals. So it's like if you have a sheet of vitals that is in supplementary areas of the medical record that shows, you know, anesthesia or local was started here and I monitored vitals for the next 18 minutes, it's like that's pretty good evidence that some other clinician was involved, right? Maybe the doctor didn't spell it out the way you, as a reviewer, want to look at it. But I always try to find out could there be other supplemental information? Another example on that is when drugs are given, uh look. Say the doctor doesn't document the drug, but there's some sort of dispensary that when when a pharmacist or someone has to take that drug out, they have to put the patient's medical record in, right? And so there's some other kind of supplementary documentation hidden elsewhere in this maze of a system that could show that, yeah, that drug was given and and and that sort of thing.   

David Glaser: 20:23 

I love that. Um, and I like I'll sometimes even consider things like appointment books. Uh the statistic I'm actually most intrigued by is productivity. Because if I've got a physician and they are at sort of the midpoint in RVU productivity and they work a typical number of days, unless they were like hiding in the hallway during, you know, they they probably did the work, right? Right. Um, and where I'm gonna be more suspicious is if someone's got way more RVUs, then I'm gonna do a harder, a harder digging. Although I will acknowledge I once had a case with a physician who had 30,000 RVUs, and I thought there was no way on earth that that could possibly be being done. And there I did something I've only done a couple of times. I shadowed the doctor for a part of it. Um, and I the doctor explained to me how they did a five, and I watched them do a five in four minutes. 

CJ Wolf: 21:21 

Yeah, yes, I was specifically requested to do the exact same thing. This came from the medical partners, so it was a relatively small medical practice. I think there were six total partners, physicians. They had hired a new guy, and he had been there like a year. And in their monthly staff meetings, they're looking at that productivity. And these senior physicians are like, there's no way this guy is doing that, and they're getting shown up, and their competitive nature is coming out. And so they hired me and they did, they said, just shadow him. I shadowed him. He was super efficient, and so just like you said, he knew exactly how to do what he was doing. So he was good at his job, right? So that was his that was his guilt, was he was efficient and he was seeing more patience than everyone else. The partners were kind of like taken back and they're like, all right, we might need to up our game a little bit here and and learn from this guy instead of uh accuse him.   

David Glaser: 22:22 

To me, that is you being a perfect compliance consultant, right? Because you verified that it was compliant and then actually made things more efficient, like it's a double win. Um so to me, that's just goal. That's pure goal in how that worked. Yeah.

CJ Wolf: 22:35 

Um Yeah, let me ask you a little bit now. So let's say you do determine and you've got competent counsel like yourself. Yeah, we need to make a refund. Now, what are the mechanics? Do how do we do it? I've heard some people say, well, let's just go in, the the claim is still active. Let's just one by one correct every claim. Others say, no, let's calculate and get a formal letter to OIG and all the big officials. What are your thoughts on all of that?   

David Glaser: 23:01 

I have a lot. So first, I don't know if you can count me as competent or not, but I will I will take the compliment and and and run with it. So first, I am a huge, I don't think you want to go to the US attorney or the OIG self-disclosure protocol unless you are really worried that there is a false claim. And if you're making a refund, you probably don't need to be that worried about it. Um, and ultimately it is important to remember that if you do either of those two things, you're gonna pay at least 150% of the amount you'd pay if you do a straight refund, right? So and if you do the refund and someone comes to you later and says, hey, we think you should have paid a penalty, you'll probably wind up paying that same 150%. Maybe 200%, but very likely the 150. So I would start with the refund of the contractor. So that's the first thing. Um, are you doing a sample or not? Depends on how whether I think the problem is systemic. If I think the problem is systemic, I think that you're gonna have to do a sample of some sort. And that is a pain in the tush, right? No two ways about it. Um uh and then I'm gonna figure out the amount and I'm gonna write a letter to the contractor. Um, and that so this I think is the next part where you can really go astray. Like that letter is a big deal. Yep. Um so here are a few tips I try to go. So, first, I like a lawyer to review that letter. I don't want a lawyer to write the letter or or sign the letter. So I might look at it for a client, but it should come from a non-lawyer. And the base reasons basic. Lawyers scare people, um, but they shouldn't, but we do. And so keep it from a non-lawyer, right? Um then the wording really matters. Like I've seen letters, I've you know, you're not gonna write a letter that says we committed fraud, right? I think most people know that, but I've I've seen people do it. Um I even try not to use the word overpayment because that's a bit of an admission. I want to say we're refunding, we're choosing to refund, right? Okay, and so a typical letter for me might say something like, as part of our compliance process, we discovered we build these services as X. Um, as a matter of policy, we would have preferred to have billed them as Y. So we are choosing to refund Z. Okay. Um And now you haven't made any admissions. You're making, you know, so so if someone comes at you and accuses you of fraud, you're still reserving the ability to say, hey, we think that you could have billed them this way. We're just we're choosing to refund because we wanted to do it this other, this other way. And I think that's just a it's a helpful strategy of not having your letter used against you, right? 

CJ Wolf: 25:51 

Yeah. But let me ask you something on that. So um hypothetical, so you you've identified you've identified something that's you think is an overpayment. Maybe it's you've used like an add-on code or or kind of another code in a scenario, and it's like, yeah, you kind of determined every time you use that code probably wasn't right. If is it appropriate, and I guess it's gonna depend, but if you identified, let's say, 1200 claims where that code was done, and you are pretty sure that that shouldn't have been done. Can you go in and just like if the claim is still on Medicare system, you just correct the claim, each single individual claim, versus because correct me if I'm wrong, but I believe the 60-day rule says something about you not only have to make the refund, but you have to inform the entity of how you came to that determination. Of why. Yeah, you're you're right. Yeah, exactly. Like what you said. You have to tell them why. Okay. So if if you're just correcting individual claims, are you telling them why? 

David Glaser: 26:57 

I would say yes. You know, it's pretty hard to imagine a scenario there. So, like at the end of the day, you've got the right amount, right? It's one of my questions here how mad can someone get at you? Like, that this is where I get when people are like, well, but what if people think you should go back six years? I'm like, well, how indignant can someone get if you've done this and been transparent about it, right? Like you've rebuilt, you've told them they have the information that you sent in a corrected claim. Um they might tell you that you they think you did it the wrong way, but can they really say you were being underhanded? No, you were very transparent. Right. So, no, I think that what you described is a perfectly good way of doing it. Um that's kind of what I'm shooting for. And this is enough transparency to say, hey, look, we're trying, man. We're just we're trying. Um, and so in the same on the 48 months, right? If if you if you write them and say we're going back 48 months, uh oh gosh, I'm gonna blank on my site to the rule. I think it's 950, it's 42 something, 952, but my brain isn't working perfectly. If you tell them that's why we're going back 48 months, can someone say you were being fraudulent? 

CJ Wolf: 28:09 

No, you were being upfront. Right. Right. Yeah, such a good point. And you know, I I try to read the tea leaves and I'm reading all these complaints, and you know, a lot of things go to settlement. And um, it's it's I think where you really probably need to worry, and you tell me, is when people are writing emails and stuff that says, No, I think you, I don't think we need to really return that. And then you're kind of you're justifying to yourself because you had a bad financial quarter, and then you've got documentation that it looks like you're hiding something. Um, and then you get a whistleblower, and then that's bad, right? Um they can make those allegations, whether they're true or not, they make the allegation.   

David Glaser: 28:50 

Now, I view my job as helping people keep money they're entitled to, right? And so I want to try to have you not have to refund, but when you have to refund, you need to refund, right? And I with the wording, you just that's the that is the nightmare scenario, right? So that's the situation where you want to get counsel that will think creatively to justify the money and then have have them send you a thing that says, here's why this isn't uh why a refund isn't required here. And then you've got you can rely on something called the advice of counsel defense. You know, in essence, I've put my license on the line, which is why I think this is a big deal to me, right? I can't just kind of say, oh, nope, keep the money, because if I'm wrong about that, you know, I'm committing malpractice. So I gotta be right. Um and and now that leads into something that I think is not obvious, which is in your refund letter, you do not want to reference what your lawyer said. It's so easy to say, our lawyer said X. And it's just important to know as soon as you tell anyone what your lawyer said, you've waived the attorney client privilege. And so the phrase my lawyer said should like basically just be banished from everyone's vocabulary. Um, if you're ever talking, I mean, within your organization, it's fine, but if you're talking to outsiders, that is never a helpful phrase.   

CJ Wolf: 30:10 

So let me ask you this then, because um what if a client, you know, is let's say CMS approves a new rule, a new service. And you know, there's been a lot of discussion in the proposed and final rules about the nuances. So before before a provider starts providing that service, they set up their plan of and then they go to council to say, is this meeting all the requirements? Please write us a memo. What are we missing? What are we not? Let's say that memo says, Yeah, as you've described it to me, all of this is compliant. If if uh if then that provider gets a recoupment request, they should not be sending that memo to the payer. 

David Glaser: 30:56 

Not without that's a great, so not without talking with the lawyer and understanding all of the ramifications. You might choose to do you. You there could be a scenario where you do that. Okay. But you gotta be really careful, you know. So, I mean, I guess the short answer to your question is you're right. No, they shouldn't do that out of the chute. And and in fact, there are a whole bunch of ways you could do the same thing. Like you you could have that lawyer, you know, you you could have them tweak it very simply. You might, you might conclude waiving privilege is okay. There are scenarios where you say, we don't care about the privilege here. Um, and so then you would do it, but absolutely not out off the cuff without a lot of deep thought. No, for sure. 

CJ Wolf: 31:39 

Yeah. So if you've if you did do that and you sent that memo without thinking, have you waived privilege? Probably, yeah, almost certainly, yes. 

David Glaser: 31:47 

Yeah. And then privilege is really complicated. And there's like kind of what's the scope? You can you're probably waiving it for like that subject matter, and then the question is how fraud is that? And you know, we could we could talk about that for a long time and and give ourselves both headaches and not have clarity. I mean, privileged stuff is hard. Yeah. Short answer don't give over something your lawyer said without careful thinking.   

CJ Wolf: 32:14 

Thinking through it. Yeah, yeah. That makes that makes complete sense. Well, David, we're kind of coming to the end here, but I feel like I could talk to you all day about this stuff because I'm a nerd, but some of our listeners have jobs and and they're probably like, I don't want to go into this deep conversation about privilege. That we'll we'll cross that bridge when we get there. Yeah. Any last-minute thoughts or things that that might come to your mind before we close? So I will put in a little bit of a plot. 

David Glaser: 32:40 

My my firm, Frederickson, does free uh monthly webinars. And so, for example, uh, we're gonna do it on the two midnight rule in February. So, February, I will be explaining why I think the two midnight rule is actually one of the easiest rules we deal with. Um, and talking about ways in which I think people uh like, for example, I will explain why no, you should never, ever, ever have a Medicare inpatient, or I'm sorry, outpatient for three nights. So, so that those the the webinars are totally free. We'll put it in the show notes if anyone wants to sign up. And the only other thing is it's really kind of I thank you for I, you know, uh I always enjoy when I run into you, and it's nice to talk to you again. 

CJ Wolf: 33:20 

Yeah, well, thank you for again taking your time, obviously sharing you know years of experience and expertise. And it's it's a pleasure to talk to somebody who who kind of has already worked through these issues and we can talk about them in practical terms as opposed to theoretical, because I think a lot of compliance officers want to know that because they're often asked that when they uncover something, and um, and they don't always have an expert attorney on staff that moment. You could get them, but that takes some time. 

David Glaser: 33:50 

Uh, I see I maybe this is a thing to end with. Like our firm, and I assume others do too. We will do flat fees with people to say, okay, we'll be on call with you so you can ask questions like this without being afraid of getting you know a big I love it. And I because I think compliance and legal should work hand in glove, right? 

CJ Wolf: 34:09 

So absolutely I will shut up now and wish you had to. No, and I totally agree because you know, I have my gut feeling on things when I uncover them, but I want a little bit of a cover because attorneys look at things very in a very specific way that I don't it doesn't come natural to me. And so I appreciate having someone on call like that. So thank you for sharing that. Um, and again, we'll we'll include all of your contact info and and then the information about these webinars. I think I'm gonna start signing up more often. That sounds awesome. So thank you for doing that for people. Thanks for having me. All right, and thank you all to our listeners for for listening again. Um, as we always like to say at the end, if you know of a speaker that you think would be really good on the podcast, let's help us get in touch with them. Or if you have a topic that you really want to hear about, we can try to find people that might have expertise there. Um, and until next time, everyone, take care.