June 29, 2016

We Just Disagree

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Dave Mason once famously sang, “there ain’t no good guy; there ain’t no bad guy. There’s only you and me and we just disagree.”  

That notion can get lost in the world of compliance, where people often fear that disagreeing with a government position is tantamount to heresy. That point was driven home for me while reviewing evaluation forms from this year’s annual Health Care Compliance Association (HCCA) meeting in Las Vegas. 

I was involved in a panel presentation that also included a smart, articulate lawyer from the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG). While there were many points on which we agreed, we also had some disagreements. That shouldn’t be surprising. If the government’s position was always right, there would be no need for an appeals process, or for lawyers. We were each representing our clients, and we did so with some passion.    

One area where we disagreed relates to the time limit in which an organization must voluntarily refund money to the government. Regular Monitor Mondays listeners know I believe that section 1870 of the Social Security Act creates a statutory limit generally preventing recovery more than five years after the year in which payment was made. In the 60-day rule, the government didn’t even mention that section of the law. It did mention a different section, but argued that medical organizations are not allowed to use it to make a determination of whether they are without fault – and therefore not liable to return funds.  

I thought the discussion was lively and respectful. I would also say it was enlightening. Many in the audience agreed, but there were a number of people who were deeply troubled and offended by the notion that any government position would be challenged. Because that perspective is relatively common in the compliance profession, it is essential to address it.  

One evaluation lamented that “compliance officers are about doing the right thing. While it may be a legal loophole, and you zealously defend your client, we are focused on a more simple threshold: was it right?” Let’s think about that position in the context of how far back you should refund money. Is the answer to eliminate all time limits? Is that what would be “right?” Even the government doesn’t take that position. They agree there should be some time limit on recovery, and both sides are continually trying to determine the proper scope of that limit. Is there some reason that whatever decision the government agency in question reaches is entitled to absolute deference? 

Compliance is about complying with the law, not complying with someone’s personal moral code. If it were about a moral code, whose code would we use? 

Consider issues such as abortion, euthanasia, gun control: one person’s right is another’s wrong. Those aren’t loopholes; they are how we determine what is right. Courts recognize that government agencies have special expertise, and therefore courts give agencies considerable deference. But that respect isn’t absolute. When an agency acts in a way that is arbitrary or contrary to the law, courts often will reverse their decisions. 

Another review form suggested that no disagreement with the government should be allowed at a compliance talk, because compliance is about doing what the government says. I have three thoughts about that. First, there isn’t one universal government opinion. Much of what I was questioning was whether regulations issued by the Centers for Medicare & Medicaid Services (CMS), one part of the government, were consistent with laws passed by Congress, another, more powerful wing of government. I wasn’t questioning whether “the government” was correct; I was questioning whether some regulations issued by one branch of the government were consistent with the law passed by its boss. 

Second, if one can’t question the government, then we live in a totalitarian country. Finally, and this may be the most important point, we all need to stomp out the notion that challenging a government position is immoral. Such black-and-white thinking can result in baseless whistleblower suits. If you find yourself agreeing that challenging the government is inherently wrong, consider this: when you interact with a police officer, do you feel that you have the right to remain silent? In a criminal case, do you have the right to an attorney? You probably can recite the Miranda warning by heart. Until that Supreme Court decision in 1966, those principles were not universally accepted. They developed because someone challenged a government position. 

Not only is it proper to question the government, I would argue that in a free society it is incumbent upon us to do so. One simply should be respectful when doing it, and also aware of the attendant risks.

One might choose to do whatever the government says. But that choice should be made knowingly, and only after carefully considering whether whoever is acting on behalf of the government is acting in accordance with the law.

About the Author

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. 

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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