May 16, 2013

Dealing with Conflicting Legal Advice

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Imagine you are listening to a lawyer making a presentation. The lawyer says something that is totally contradictory to everything you have heard before. What should you do? How do you decide what information is correct?

The first thing to remember is that for many of us, myself included, there is a tendency to place greater credence on the first piece of information you hear. I know that if the first person I talk to says a movie was bad, my response to the second person, when they mention that the movie was good, is likely to be “that’s not what I heard.” However, if you think about it objectively, you now have heard from only two people. The information from the second person is not inherently less reliable than the information from the first. Our brains have a nasty habit, however, of placing greater weight on the initial information.

Secondly, just because you have been doing something a particular way for a long time doesn’t mean that this way is correct, or better. Physicians used leeches for many, many years. The fact that the sun revolved around the earth was considered incontrovertible. Don’t necessarily give any credence the number of people who believe something, or how long they have believed it.

Instead, focus on written guidance. In America there is a general presumption that something is legal unless someone can show you a law prohibiting it. In other words, if one person says something is legal, and someone else disagrees, the burden is on the person claiming that it’s illegal. He or she needs to support their position with some sort of evidence. When someone asserts an action is illegal, they often are asked “show you the rule.”

Once you get a copy of the rule, you have two tasks. First, you need to figure out exactly what the rule means. Many rules are not easily understood; the wording can be difficult to discern. Even when the rule is comprehendible, you need to be careful to consider its applicability. If someone shows you a Medicare rule, it does not automatically apply to other payors, including Medicaid, TriCare, or private entities. 

The second task may be the most difficult: you need to determine whether the rule is valid. Imagine that a MAC issues a “rule” indicating that any stay of less than 48 hours must be treated as an outpatient stay. MACs lack the authority to create such a regulation. Within the Medicare program there is a clear hierarchy of authority, and the highest authority is the court system. Immediately below that are federal statutes, which sometimes are called the U.S. Code. Next come federal regulations, which are found in the Code of Federal Regulations, or the C.F.R. When a new regulation is issued, it appears in the Federal Register. When most regulations are issued, a government agency includes some interpretative guidance in a document called the “preamble” to the rule. While this guidance carries some legal weight, it is not of the same degree carried by the regulations themselves. Next come the various manuals and other instructions issued by the government agencies. Finally, there are the instructions from the MACs themselves. 

A rule issued by a lower regulatory authority is not valid if it is inconsistent with that which already has been established by a higher authority. A MAC lacks the authority to establish a policy that contradicts an existing regulation or statute. In this example, since there are manuals from Medicare indicating that physicians should use 24 hours as a benchmark for admission determinations, MACs lack the ability to create a different standard. In short, just because someone can show you a rule doesn’t automatically mean that the rule is valid. You need to consider whether the authority to impose the purported rule exists. 

The “authority” question can be particularly important when dealing with private payors. Unless a contract with the private payor gives it the right to impose rules on you, private payors generally have very little authority to impose anything (a contract, however, can change everything.)

It may seem daunting to be in a position in which you have to choose between conflicting opinions issued by two experts. But don’t shy away from the task. Think of yourself as a judge or juror. Ask the people offering the conflicting advice to explain themselves. Listen carefully and ask lots of questions. If possible, you even may want to have the conflicting experts have a discussion while you listen. Remember that the burden is on the person claiming that a certain action is illegal. Make them present their proof. See whether their arguments make sense. Confirm that they are able to cite something other than their opinion or what “everybody knows” (or does.). 

The healthcare world is a highly regulated environment. It can feel like a “risky business.” But if you ask people to cite their sources and listen carefully, disputes between experts can be educational, not stressful. Never be afraid to ask people “why.” And keep enough of an open mind to consider the possibility that something that you have believed for years may be wrong.

About the Author

David Glaser is a shareholder in Fredrikson & Byron's Health Law Group and helped establish its Health Care Fraud & Compliance Group. David helps healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes.

Contact the Author

dglaser@fredlaw.com

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David M. Glaser, Esq.

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and is a member of the RACmonitor editorial board.

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