Waller Law is a long-standing partner of Health:Further, and we are proud and grateful to have had the chance to work with them over the past several years. I recently sat down with Jesse Neil and John Haubenreich, attorneys who work at the intersection between healthcare, policy and regulation. They help clients navigate the complexities of our ever-evolving healthcare system, working on compliance and handling investigations when they arise.
We had a great conversation, ranging for current regulatory issues to how to approach a lawyer for help. A few highlights are below, listen to the full podcast for more. In addition, check out the following links provided by Waller for more insight:
- Private equity in healthcare: Full speed ahead (with Guardrails): DOJ complain highlights regulatory risks but firms should stay the course
- CMS seeks input on Stark Law and other regulatory issues
Please note that while Neil and Haubenreich are lawyers, nothing in this article or the podcast should be taken as legal advice. Call them directly.
JN: My job is focused on day to day operations at healthcare companies […] One of the things I like about it is that public policy, you really have to track and keep up with, know what’s coming down the pike so you can give good advice to your clients. It’s not enough to be on the defense. You have to help them strategize and let them see what’s, what’s possibly coming down the pike for better or for worse. And so my days are spent providing that function to healthcare companies around the country.
JH: I sort of bridge the gap between what Jessie does and when you find yourself in court dealing with the government. So my practice tends to be on the investigation side as well as government enforcement. [I] handle a lot of issues for companies that are either just starting to look at a possible problem or something they might think is a problem. We’ll come in and do an investigation for them and work closely with folks at the firm like Jesse, to identify what the regulatory issues might be all.
HF: What’s the response from companies when they find themselves looking at a regulatory/compliance issue?
JH: My favorite response is we already have a plan in place to deal with this. I will say that’s my favorite response. It’s not usually the response that you get, uh, oftentimes you get, you get a company responding the same way that most people respond, which is, ‘oh no, what are we doing? Who do I call, what do I do?’ And you have a lot of people running around like chickens with their heads cut off. The good companies have really thought about this ahead of time. This is something we work with our clients on: what to do if an FBI agent shows up at your employee’s doorstep or if you get a subpoena from DOJ or a civil investigative demand or something where someone sues you in a very high profile lawsuit and simultaneously submits a press release to news networks, which has happened to us.
Some [clients] are very experienced and capable of handling it […] Some of them you get very panicked phone calls. I think a lot of people have gotten those phone calls on the legal side, and you just do your best to talk him down and say, all right, listen, we know what we’re doing here. It’s easy. We can work through this. But yeah, litigation’s scares folks and it’s, it can be a scary thing.
JN: My experience has been the same. It’s a personal, emotional response. Even if you’ve got a startup where the person who created the company is the one that gets a subpoena and he thinks, ‘my gosh, this is an indictment or a somehow, looks adverse on me personally. What are my friends are thinking, my family?’ And obviously there are varying degrees of seriousness, but once you can sit down and talk to a lawyer and say, well, ‘send me a copy of the letter that just came to you and then I can call the person that the government that it says to call and just let them know that we received it and we want to cooperate, is there any information you can give us, are we a target or witness?’ And the more you realize you have a person on the other end and the person knows that you’re working in good faith and trying to get to the bottom of it, the client seems to get a lot better perspective on it. But in healthcare today, it’s in the ordinary course of business. You get extremely scary notices from law enforcement officials a lot. It’s a cost of doing business.
HF: What should companies do or not do when they get these notifications?
JH: Practice tip for folks out there listening to this: Number one is you get one of these things in the mail? Don’t go firing off a bunch of emails, don’t go start looking into things yourself. ‘Hey, I’m going to give my HR manager a call, I’m going to go down to that office and I’m going to talk to that guy and see what’s happening.’ Don’t do that. That’s it. It’s tempting to want to do that to try to get into it yourself, but what you’re doing is creating a nonprivileged trail that the government can look at later.
If you start firing off a bunch of emails and you haven’t hired counsel to help you out with this, a lot of what you’re doing is creating the investigation for the government that they can come around and get through discovery or they can subpoena. So take a breath, don’t go off half-cocked and started looking into things by yourself. It’s always good to at least call a lawyer even if it’s just for a little bit of advice. You don’t necessarily have to sign an engagement and send a big old check right this second, but call someone, just get a little advice […]
JN: I’ll add one to that. Taking a breath and sleeping on it is a lot easier if you’ve gone through the exercise of training and educating your team members from top to bottom, [so they] know that these things come sometimes and they’re not going to wonder what to do. They’re going to know what to do, to call the right person
HF: What are the top issues/ideas that you’re tracking right now?
JN: What has occurred to me on the enforcement front is that it’s not the usual suspects necessarily that the government is really focusing their energy on. An example: in the last six to eight months, there was a department of justice complaint that they pursued and they included not just a healthcare company, but the private equity sponsor. I believe that’s the first time it’s happened and […] that raised some eyebrows. It’s not just companies they’re holding accountable for companies’ conduct, but they’ve specifically stated in they are trying to hold individuals more accountable.
Also, just as a general matter, the post acute care world for a number of reasons – and some very legitimate reasons – is a focus and a target of enforcement. I think part of it is that compliance these days is so investment heavy. I mean, you have to put a lot of time and resources and money into those. A lot of the players in that space are still very segmented. They don’t really have a way to scale things out. And so they’ve got less of a robust compliance function and the government goes where the money is. [The government can] go because they can go in and find issues that have occurred or that they think are occurring and they think that they can pursue them from law enforcement perspective or just an enforcement perspective.