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00;00;05;01 - 00;01;08;24
Meg Pekarske
Hello and welcome to Hospice Insights, The Law and Beyond, where we connect you to what matters in the ever changing world of hospice and palliative care. A Glimpse Into the Other Side: Understanding the Perspective of Government Enforcers. Well, I'm so excited for for you, Jonathan Porter, that you joined our team and that you're on your first podcast with Bryan and I. So this is really exciting. And so, Jonathan, you you joined our team in the firm in January and you were a former assistant U.S. attorney in Georgia. And, you know, it was really exciting for us was how much health care experience you had and and also familiarity with hospice, because we know that that's also a very active space. And so it was just fabulous to for you to come over. And also you're just a wonderfully nice guy. So that's a double plus in my book. So thank you. Thank you for joining. And and I guess, how are things going since you joined?
00;01;09;07 - 00;01;31;01
Jonathan Porter
It's been great. I've really enjoyed the firm. It's it is not at all you know when you when you join a larger law firm I think everyone has these impressions of what it's going to be like. And I'm pleasant. I've been pleasantly surprised everyone. So so very nice here at hush It's been it's been great.
00;01;31;16 - 00;02;00;15
Meg Pekarske
That talk about where you came from and the kinds of work that you did there. You guys called the Justice Department. I always call it DOJ. Obviously it's the same thing. But somehow when you say Justice Department, it just sounds, you know, definitely more serious. So what did you do at the Justice Department? Because a lot of our listeners are not lawyers, so they don't know what assistant U.S. attorney does. And so why don't you give us a glimpse into that?
00;02;00;29 - 00;04;20;04
Jonathan Porter
Sure. Yeah. So I, I was a federal prosecutor for about a little over five years. The Justice Department is is sort of comprised of a bunch of different components. It gets really complex. There's a flowchart somewhere. But but I I'll sort of spare you spare you all all of those details. You know, what our listeners should know is that they're the country sort of divided into like 93, 94 different federal districts. And there are there's a U.S. attorney for every single one. And within that office, there are people who do every type of every type of case. So, you know, gun, gun, prosecutors, drug prosecutors, human trafficking prosecutors. You have attorneys who represent the United States in defense of cases. If the you know, an employee, the United States commits a tort. And then there are people who, like me, did mainly fraud. So I focused mainly on on health care investigations. I started with civil investigations under the False Claims Act involving health care, including whistleblower initiated cases and investigations. And then I started working criminal health care cases as well. Most agencies, they do one or the other. I'm probably a handful of lawyers who do that, like serious DOJ experience in both false claims of cases and criminal health care cases. So, Meg, you mentioned hospice. I did work on on some hospice cases, but I did all all types of health care cases. Very rarely do you get super specialized within DOJ, sort of within a health care subspecialty. But, you know, on the criminal side, I prosecuted, you know, a dozen or so physicians, half a dozen pharmacists, health care executives, DME owners, other medical professionals. And then on the False Claims Act side, I led investigations into health systems, physician groups, medical device companies, medical technology companies, life science companies, all sorts of all sorts of those. And relevant to today's conversation, some hospices. So that's that's what I did with DOJ. And obviously now I'm I'm here with Josh Blackwell helping our our clients deal with those federal investigations and everything that's that that goes with it.
00;04;20;08 - 00;05;31;16
Meg Pekarske
I just think that having you on our team is so helpful because I've never got a federal prosecutor and Bryan has an either. And we have other folks in our firm, you know, and they have a large white collar group. But your your specialty and health care in particular, I think was really, really exciting for us because as the the name of our podcast today title is, it's like understanding the other side in that perspective. And so that sort of jump in to that about and maybe you set it up for us, Bryan, because we have worked on, you know, a number of, of false claim cases with the Justice Department and lots of different parts of the country. And I guess we've done a whole I guess it was probably about a year ago we did a three part false claim series. And so we talked about some of these requests that come in to hospices and what they look like and the different types of requests that you get. But why don't you do a brief refresher about when one Jonathan's expertise can really be helpful?
00;05;31;22 - 00;08;12;24
Bryan Nowicki
Great. Yeah, I'll do that. Meg and Jonathan, and welcome to the team. You and I have talked many times over the past six weeks since you've been here and very happy to have you on board and working alongside me and Meg and representing hospices and Meg as you and those who listen to our podcast regularly know, much of our work involves advocating and with the government, and those projects typically start with a hospice getting some communication from the government that then they call us and say, What do we do? What is this mean? How do we how can you help us? And those that outreach from the government comes in many forms. A lot of the work we do is audits. So CMS is sending out or one of its contractors sending out a request for medical records. But that's not the only kind of outreach the government performs. We've we've interacted with assistant U.S. attorneys and U.S. attorneys like Jonathan, where he came from. And they can do a host of things as well. We've encountered simple letters from assistant U.S. attorneys asking for documents. We've learned of assistant U.S. attorneys contact in our clients and asking questions. And so we understood that to be an investigation. And and we've also gotten subpoenas. We've gotten items called civil investigative demands, which is really a formal request for documents and information that you must respond to within a certain amount of time. And usually indicates that you're being investigated based upon a potential false claims Act violation. And so there can be any number of kinds of contacts that hospices will have with the government. And when we get involved, one of our first priorities is to try to figure out what's going on, because a lot of times you cannot tell from that initial contact what is the government doing, Why are they doing it? Do they have information? We don't have or are they focusing on certain information? Is there a whistleblower involved that is leading this? And our first priority is try to figure all that information out. And sometimes that can be a real challenge because the government, when they're investigating hospices, they don't disclose a lot of information. So we will try our best to discern from the requests for information and building a line of communication with the assistant U.S. attorney to just learn as much as we can about what their goals are, their priorities and all that. And that helps develop our strategy for helping hospices engage with the government and respond to those requests.
00;08;12;24 - 00;08;37;22
Meg Pekarske
So Jonathan, chime in here. As Bryan laid out, there's sort of a spectrum of what you can do, a subpoena versus a civil investigative demand, and maybe we start there. What are those two different tools and why does someone choose one of those versus others? And is it a preference thing or is it like what? What goes behind that?
00;08;37;29 - 00;11;49;18
Jonathan Porter
Yeah, that's an excellent question. So there's sort of carrying forth your your, your, your tool, your tool analogy. There's a lot of different tools in the government's toolbox and sort of which which tool is is being used really depends on the situation. And you can tell a lot about what situation you're in depending on what tool the government uses. That's probably why it's important to have an attorney experienced in in federal investigations when these situations arise. You know, an experienced attorney in this area can guide you a lot better than than a non experienced attorney. So, you know, don't don't call the the attorney who handled your last real estate closings or your ADM attorney. You should probably find find someone experienced. But, you know, just in a nutshell. So criminal investigations, they involve subpoenas, a grand jury subpoena, a hip a subpoena. They can involve search warrants. So if a team of federal agents in bulletproof vests show up, that's that's a criminal investigation. In civil investigations under the False Claims Act, they involve a different legal process. And the typical one you see there is a civil investigative demand or a side sides. If you get a side, you know that there's a civil investigation. You don't necessarily know whether there's a criminal investigation. But see, it's only a only a civil tool and sides they can make someone respond to in writing, to written interrogatories. So questions the government can just ask you questions in writing and you have to respond in writing. They can. And sometimes the interrogatory will say, Hey, tell us everyone within your hospice that knows about this given issue, and then you can sit all those people down for your testimony. So part of the the city structure allows the government to sit down witnesses under oath and ask, you know, questions all day. And it's it's frustrating for a lot of folks. It's one way discovery the provider doesn't get to ask the government anything. You know, a lot of times in litigation, it goes both ways. It doesn't with with this process. And then and then as you guys mentioned, you've got informal requests. I use this a lot. When I was an assistant United States attorney, when I found a problem area rather than just doing a full investigation, I would reach out, identify the problem that I'd spotted, and then invite a self audit. I like that tactic. When I was in AUSA, I liked that tactic because it gave the other side a sense of control over things That tended to be one of the biggest frustrations that providers had was they had no control over the situation. And that led to some, you know, harsh feelings and the other, you know, so a self audit always gave the other side a feeling of control over the process. And I thought that that always led to some pretty good discussions after that self audit came back. And a lot of times that that led to an easy resolution of things which, as you know, you would say that's one of your big priorities, is to resolve things fairly amicably quickly as well.
00;11;49;23 - 00;13;05;19
Meg Pekarske
You have these different tools you use, I guess what's the basis? We talked about whistleblowers. They can be a basis for civil investigative demand, but some of these self audits and we're dealing with some of these right now for hospices where the AUSA is asking for the hospice to self audit some records, which is a huge investment of time for for the hospice. So I know I hear what you're saying on the whole control part, and I think I was just like, this is going to be expensive. I mean, any government investigation is typically expensive, but you have a lot of upfront costs and you know, you're in the driver's seat. But then, you know, there's some strategy there. But so tell me, you know, what's behind these investigations And maybe that's not spend time talking so much about whistleblowers, but like, if you're self auditing or ask someone to self audit, do you have data analysis? Do you have a tip? Is that is it like come from on high that you should be prioritizing things? Tell me a little bit more about how things work in general.
00;13;06;09 - 00;15;53;01
Jonathan Porter
Yeah, that's a good question and there's really not an easy answer. There's a lot of different ways that that files get to a get to the Justice Department's attention, you know. So we'll just start with whistleblowers. The, the, the, the one thing that agencies have to do is diligently investigate whistleblower lawsuits. That is a directive from Congress. That's right. In the False Claims Act, in the section that lays out how key teams work, it says that the the Justice Department has an obligation to diligently investigate what's being alleged by the whistleblowers. So there's not an option to not be did not be diligent. So that's that that is one thing that that where the priority sort of determined for the ACA outside of those whistleblower complaints the vast majority of the time the ACA has unbelievable autonomy. Me too to just sort of find and work meritorious cases. That's what makes being an AUSA such a fun job is you're you're given a lot of free rein to find fraud, find abuse, find kickbacks, and then hold the hold people accountable. So if you know if a particular AUSA in a in a health care group finds, you know, sham speaker programs to be awful in his or her mind, the ACA can has this team of agents that can go and find sham speaker programs same with any other sub issue that you can think of. So that's the big driver is is what what is the ACA find find interesting now other times you do get directives from above. An example of that is covered fraud. So when when when Congress passed and passed the CARES Act in the early days of of the COVID 19 pandemic and it became, you know, super obvious that that there was a lot of pilfering of the program by blatant fraudsters. A lot of prosecutors were with fraud experience, we were told. All right, you're you're now a covered fraud prosecutor as well. So I did that for the last couple of years. I was what the DOJ was. I added COVID fraud to my health care fraud portfolio and said that sometimes priorities that get handed down by something like that and sometimes you you suddenly get a particular segment of the health care industry that gets a spotlight shined on it by the media and DOJ feels pressure to to react. I think we may be seeing that now with the New Yorker article that ran recently that looked at the hospice industry. So sometimes something like that, the media shining a spotlight on something will will get DOJ to to react. Sometimes not not not always.
00;15;53;06 - 00;16;25;00
Meg Pekarske
So in terms of what our audience is more familiar with, and probably every hospice in the country has dealt with a program integrity audit of some sort. Those folks who do those audits are really under the purview of CMA. And I guess when you're at the Justice Department or you have meetings with CMS where they're telling you what their concerns are or things like that, or is that just very separate administrative agency and there's not a lot of flow that way?
00;16;25;24 - 00;17;51;16
Jonathan Porter
Yeah, that's a great question. And it sort of depends on which sort of which branch of CMS it is. On rare occasions we would get referrals from the from the from the contractor and those would be of varying quality. Sometimes they were really good, sometimes they were not. Not at all interesting. The big overlap comes with with HHS, OIG agents, So CMS is part of the Department of Health and Human Services and a branch of HHS is their Office of Inspector General. So when I was at AUSA, literally the floor under my office was a team of HHS, OIG, federal agents. They, you know, they were full, you know, gun carrying federal agents. They could go out and, you know, do search warrants and everything. They are they're legit federal agents. And they were getting they were they were they were always getting pushed down these new vulnerabilities in the Medicare program. So we would I worked really, really closely with those agents to identify sort of priorities problems that that's usually the way it was coming down to large, that we were getting a lot better and better on our own at that, analyzing data and spotting spotting potential problems, outliers, those those types of things.
00;17;51;22 - 00;20;30;17
Meg Pekarske
One thing that I think really sets our group apart is just our very, very deep, substantive knowledge and has this because I've been doing this a long time now and and Bryan's been doing it a long time now with me. And I think hospices and I think every segment of health care has its own nuance. But hospice is a fairly unique benefit and it has a lot of particularities that I think are really important that probably are not very well understood from a legal framework standpoint. And so I think when we handle these cases, we can really come in with a lot of knowledge because in my experience and I think you echo the singer comments, as you know, as an AUSA, even when you're specialized in fraud, you're doing a lot of different kinds of cases and you're you haven't been doing the hospice for 23 years. You know, you're you're really doing a lot of different kinds of things. And so in terms of when you worked with lawyers on the other side, I mean, Bryan talked about building this line of communication, which I think is really important of having, to the extent you can, a really good relationship with that. AUSA And there's a flow of information and there's trust there. But how much does that play in when when you have someone who's obviously not not trying to educate you in a way of talking down to you, but sort of provide some contact next? And Bryan, you can jump in here about the kinds of things maybe we try to do in our responses, because I think, for example, it's very easy for someone who doesn't really understand hospice very much to say, oh, jeez, someone outlived their prognosis, you know, and lived several years on hospice. There must be something wrong with that. And it's like, in my experience, a hospice who's actually doing a good job is going to have patients, you know, out, you know, along a continuum. Every hospice in the country is going to have a tail if they're doing the right thing in terms of, you know, not just discharge because, you know, they outlive their prognosis if that a physician truly believes that they're eligible. But I guess how helpful is that when you work with other lawyers, that that they come with that substantive knowledge as opposed to it's just another white collar crime lawyer who also does many, many things.
00;20;30;25 - 00;21;42;04
Jonathan Porter
It's super helpful to to have someone I mean, really, when I was in the USA, I approached the job with great humility. I mean, I worked in health care cases, but I worked every, you know, within the health care sphere. I worked every type of case. So I always approached cases with a lot of humility and knew that there were specific parts about, you know, hospices or DME or or, you know, cancer genomic testing. But that I didn't that I didn't know I would, you know, quickly become an expert on those things when I needed to. But but when you're when you're an AUSA, you're doing all different types of cases, it's important to sort of have that open mind. So I loved it when attorneys would come in and say, you know, you you found something that you think is interesting. Let me explain to you why that's that. That's less interesting. Let me just give you the background on on how all the all of these things work. And you have to do it in a way where you're not angering the U.S., that that's a that's a pretty that's a pretty critical thing because the ACA, like I said, has a lot of autonomy. So there's a there's sort of a delicate balance there of educating the ACA without making the error was I feel like they're, you know, dumb.
00;21;42;08 - 00;22;21;25
Bryan Nowicki
That's really been a part of our approach in talking with AUSA is in these investigations is you know we respectfully approach the AUSA is we there is a fair amount of education and the feedback we've gotten is generally positive that they really appreciate it. Just like you said, Jonathan, they appreciate it. And as long as we're playing straight with them, which we always do, both on the law and the facts, it builds our credibility, it builds the trust. And we have found that to be a great pathway toward getting to resolutions that are fair and reasonable. And so that's kind of been our way of operating these things, build all that trust and credibility.
00;22;21;25 - 00;23;08;13
Jonathan Porter
And if I could build on that, you know, a lot of folks, when they get the well, the agents show up and they start, you know, interviewing employees, I get that. That's frustrating. I get that. You think you may think that the government lawyer is, you know, out to get you and you may feel like you want to act nasty with them. That's almost never the right approach and certainly not from from you. The writer. You know, those are you you may think that that the agents are unfair to you now, but you're going to probably want something from them down the road. So, you know, yelling at agents, calling you as those names, saying changing into a shirt that says it has expletives on it when the agents are at your house. That's a true story. Those are bad ideas.
00;23;09;04 - 00;23;12;10
Bryan Nowicki
You know, that sounds like you're from experience, Jonathan. Yeah, like that.
00;23;12;28 - 00;23;49;06
Jonathan Porter
But you're going to these are these are folks with a lot of autonomy. They get to sort of pick and choose what they want to do. And if you want those people to be on your side down the road, if you want them to not you want to talk them out of charging, talk them out of filing of false claims, that complaint talk them out of intervening, you know, in a whistleblower complaint, talk them into affirmatively dismissing a whistleblower complaint. That's wrong on the merits. You're going to want that AUSA to have to think highly of you and respect your opinion. And so sort of building that relationship is is critical to having having those conversations down the road as.
00;23;49;06 - 00;24;25;16
Meg Pekarske
We're recording this. I think it was this week or maybe it was last week that it was the lowest return on health care fraud cases in some time. And that was surprising to me. I mean, we are continuing to see a lot of activity in this space. And I guess any thoughts on on that? And I mean, I was also thinking like that can't make them very happy seeing that and they're going to ramp up and be like, well, I don't want people to get the wrong idea that we're not going to be tough on fraud here.
00;24;25;22 - 00;25;19;08
Jonathan Porter
Yeah, I think there's so I think there's a lot of that. That's not an easy question. I've not seen this else this theory elsewhere. My personal theory is a lot of that are it a lot a lot of what you're seeing there, resources within the Justice Department going from health care into what, like COVID fraud? You know, I, I can tell you that COVID fraud is a big priority in the in the Justice Department right now. So I think, you know, normal and those things are not ready. You know, it takes a long time to build up a false claims act case. So it could be that, you know, priority priorities are shifting a little bit. But I don't I don't I don't this may just be a little blip. I think, you know, it's not like we're we're we're we're sitting here saying that health care fraud is is a go now. It's it's still a bad idea.
00;25;19;09 - 00;27;40;26
Meg Pekarske
Yeah, that is true. And I mean I think, you know, separate topic but just some of the changes in the antitrust landscape is also very interesting. So I think health care is going to continue to be an area of focus. And I think hospice in particular, because I had learned that the there is about six a little over 6000 hospices in the United States now, which I feel like I remember when it was over 5000, I was like, Oh my God, that's crazy, you know? And now we're over 6000. And I think that 54% of those hospices of the 6000 are in the states featured in The New Yorker article. So California, Nevada, Arizona and Texas. And it's like 50. I mean, obviously Texas and California are real big states, but holy cow, that's, you know, tremendous growth. And and as we always say, I mean, any time you have tremendous growth in an industry, you know, the government money is not free and people are going to, you know, start asking questions. So I think we're going to be in a, you know, different phase of enforcement because as we're talking about, forces come from are enforcement comes from different places. And I think the media attention right now has been pretty significant. And I know all of the national associations have met with teams to explore ideas about how they can curb, you know, some of the bad conduct that's been highlighted, because I think the constant concern is that you label an industry a certain way and it's like there are some bad actors, but most people are really doing the right thing and trying to do the right thing. And, you know, so it can be really frustrating from a provider perspective, but that sentiment is just so prolific. Well, this has just been a fascinating conversation. And Bryan, I don't know if you have other other thoughts to add. We've been able to collaborate already on on some matters with with Jonathan, and his insight has been really helpful.
00;27;41;07 - 00;28;32;03
Bryan Nowicki
I think Jonathan, joining our team at this time is very timely because you know we are encounter in more of these situations where it's great to have that insight from a former government enforcer. So now we can kind of use that to benefit our clients and get that additional extra edge in trying to find out what the motives are. You know, what could the government be after and how can we satisfy the government? I mean, that's what we want to do is give them what they want, characterize the right way to try to reach a fair resolution. So, yeah, it's it's wonderful having Jonathan here. We're already working with them a lot and hopefully I won't have to continue too much because that means our things are getting investigated. But but it's great to have someone like Jonathan on our side.
00;28;32;09 - 00;29;17;07
Meg Pekarske
No, I find that I call Jonathan out of the blue like, well, let's ask we've got Jonathan. Thanks. Or like we had a client call about a provider was under investigation and they wanted so I think that they're are having to discharge their their patients and they were concerned about whether or not taking on, you know, patients from this hospice who's been investigated, Ed, would have any stain on them. And I felt I knew the answer to that, but was like, well, what would Jonathan think about that or what does he know that I don't know because obviously you bring just a wealth of knowledge. So it's really fun to be able to continue to up our game.
00;29;17;07 - 00;29;21;25
Bryan Nowicki
It's a whole new perspective on WWJD, What would Jonathan do? Yeah.
00;29;22;03 - 00;30;13;10
Meg Pekarske
Exactly. Exactly. I know. Now I just don't have to think about what Jonathan might do. I can actually ask him like you posed to play, you know, cat and mouse with Jonathan. But anyway, we're just so happy to have you and, and you've added a ton of value already, So we appreciate you joining our podcast and I'm sure we'll have you on many more times. So thanks so much. And we'll talk later. Well, that's it for today's episode of Hospice Insights, The Law and Beyond. Thank you for joining the conversation. To subscribe to our podcast, visit our website at HuschBlackwell.com or sign up wherever you get your podcasts. Till next time, may the wind be at your back.