A Miscarriage of Justice on Both Sides of the Political Aisle

I suspect some readers will consider this article political, but I would assert that it is highly principled in one root thesis: authoritarianism is bad. Plus, I am about to heavily criticize one administration from each party. 

First, nationally: the President is going after law firms that have brought cases against his policies, issuing executive orders to intended to punish the firms that represented people challenging him. That should terrify us all. Your rights are only as safe as the willingness of a lawyer to defend them.

We should all be speaking out against the attacks on Perkins Coie, Paul Weiss, and Covington and Burlington. There is a reason Shakespeare wrote in Henry VI “first thing we do, let’s kill all the lawyers.” Silencing lawyers is a path toward bulldozing rights by making more people reluctant to stand up for themselves.

But abuse of power isn’t limited to one party. I have talked about a case that I was recently working on. Unfortunately, the case is effectively over, because it’s coming to a terrible conclusion. There aren’t many things that have made me cry. But this case has. And the problem arises from a Democrat administration in my home state.

We were representing a large substance use disorder treatment center. Almost three years ago, the federal government began investigating them, because they would pay for a client to live in a recovery residence during the time the patient was getting treated, and for a month following the conclusion of treatment. The government’s position was that this constituted a kickback.

I feel quite strongly that the government’s position is incorrect. It’s true they can point to a case called the Narco Freedom case in New York as support. The judge there concluded that the exception to the civil monetary penalty provision that permits payments that promote access to care as long as they don’t jeopardize patient safety or the government fiscally didn’t apply to the Anti-Kickback Statute.

That position makes no sense to me, because why would Congress create an exception to a civil fine while allowing criminal prosecution? No one will ever take advantage of the civil exception if they can still go to jail.

But today I want to focus on how the case ended.

My client is not going to get a day in court. The Minnesota Department of Human Services opted to freeze their payments, claiming there was a credible allegation of fraud. I won’t fully explore the facts in this article, but I will note that the Department was fully aware of the program from at least 2019, because my client told them – more than once. 

But when 90 percent of your patients are Medicaid-insured, a payment suspension is functionally the death penalty. We brought a lawsuit in federal court to challenge the payment suspension. That may sound like a day in court, but it isn’t, in the way you would hope. The question for the judge was “do you get a day in court?” and the answer was “no.”  From the opinion, I’d bet considerable money that the judge felt my client was being treated unfairly. But ultimately, the ruling was that organizations don’t have a right to payments under Medicaid. And because you don’t have a right to payment, you don’t have a right to challenge a payment suspension before it is imposed. While this case applied only to Medicaid, the judge cited a case from Medicare as well. The lesson is that you can’t assume you can challenge payment suspensions in court.

Finally, I want to call out the Minnesota Department of Human Services for one deeply troubling fact. At a meeting to discuss how patients getting treatment would be affected by the payment suspension, the Department offered a suggestion.

They noted that my client has an inpatient program. They suggested taking some of the patients from the intensive outpatient program and putting them in the inpatient program.  As I responded in the meeting, if I were to suggest putting patients in a higher level of care than they needed,

I would quite reasonably be accused of fraud. I believe that the State of Minnesota suggested my client commit fraud. Moreover, it’s hard to imagine more compelling evidence the State didn’t actually believe my client was engaged in improper conduct.

If they did believe the client was a wrongdoer, presumably, they would not suggest that the client keep providing treatment. I honestly don’t understand what was going on, but I just witnessed the worst miscarriage of justice one of my own clients has ever experienced.

Programming note:

Listen live every Monday morning for healthcare attorney David Glaser’s popular segment, “Risky Business,” on Monitor Mondays with Chuck Buck at 10 Eastern.