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June 01, 2018

Perversion and Protection of the Rule of Law

Hilary H. Young, Joy & Young, L.L.P., Austin, TX

The world is an imperfect place.  People are fallible; their institutions are, too.  I have commented in previous columns on the value of the rule of law, and the importance of defending it.  But in recent weeks, I have been confronted repeatedly by some of the limitations of the rule of law, particularly where the application of law does not provide access to justice.

My practice involves regularly advising hospitals and other healthcare providers on how to comply with a range of operational laws and rules.  These include the Emergency Medical Treatment and Labor Act (EMTALA) and the Medicare Conditions of Participation for Hospitals.  Hospitals are subject to surveys when the government receives complaints, and the Centers for Medicare & Medicaid Services (CMS) can initiate an action to terminate a hospital’s Medicare provider agreement (which would also terminate participation in Medicaid) based on noncompliance with one of a myriad of applicable rules.  The Office of Inspector General of the Department of Health and Human Services (OIG) is authorized to levy sizable civil monetary penalties on hospitals for negligent violation of EMTALA – a hospital, its staff, or its physicians do not have to intend to violate the law to be subject to these penalties.  For example, last year AnMed Health, a South Carolina hospital, paid the OIG $1.3M, the largest EMTALA civil monetary penalty levied in the history of the law.  AnMed Health had an inpatient psychiatric unit that admitted and treated only voluntary patients.  The basis for the OIG’s action was chiefly that the hospital boarded involuntary psychiatric patients in its emergency department pending transfer to other hospitals instead of admitting them to its unit, despite the fact that the unit did not treat involuntary patients.

Laws are supposed to tell providers what they should and should not do.  The trouble is, however, that laws are often subject to interpretation.  It is difficult (perhaps impossible) to write a law or rule that anticipates or fits every situation.  When a situation presents unique facts, critical thinking may be necessary to determine how to apply the law.  Of course, we as lawyers make our living analyzing statutes and rules, advising clients, and debating the meaning of the law with our clients’ adversaries.  But our jobs are made more difficult when those adversaries take a hard line, wielding the law as a weapon, and not considering context or common sense.  Additionally, the rule of law can be perverted when government agencies implement policies without going through the proper channels to enact statutes or promulgate rules.

My clients’ adversaries are typically governmental regulatory agencies.  Hospitals work with the same regulators on an ongoing basis.  Consequently, I have interacted with many of the same regulators through the years.  And most of them are trying to do a good job.  (There are certainly exceptions, but there are exceptions on the provider and lawyer side, as well).  I have always appreciated the regulators who would listen to a cogent argument and consider information they may not have had when they decided to sanction a provider. 

But lately there seems to have been a shift in my world.  Some regulators are suddenly interpreting rules in ways that are a significant departure from how their agencies have applied the law historically.  They appear to be twisting the rules to achieve a desired end, failing to recognize the plain meaning of some provisions, and declining to read long-standing guidance their agency has published about how to apply the rules.  They are not receptive to other points of view, and they are using their enforcement authority to compel providers to change long-standing practices that have been acceptable to their agencies until now and that benefitted patients.  The AnMed Health case is a prime example, where the hospital had a limited psychiatric unit, but was told the law compels all psychiatric patients to be admitted from the emergency department to the unit even though the unit is not capable of treating all conditions.  The lack of a clear process to dispute or appeal these positions increases the regulatory pressure and providers’ growing frustration.

Similar problems occur in the world of provider enrollment.  CMS adopted stricter rules a few years ago, and many of those rules are being applied harshly.  As an example, some providers have had their Medicare billing privileges revoked when a surveyor stopped by and saw a sign posted on the office door that they were out to lunch at a time that was not consistent with the operating hours they reported on their Medicare enrollment application.  This remedy was written to prevent unscrupulous providers from reporting a fraudulent location and billing for services that are not really being provided.  Yet some providers have found themselves unable to bill for medically necessary services they have actually provided because they took their office staff out to lunch on a special occasion.

Most distressingly, we are all seeing the effects of a hard-line approach playing out on our southern border, as agents from U.S. Customs and Border Protection implement a zero-tolerance policy and separate migrant parents from their children.  I am not suggesting we should not protect our country’s borders.  But where is the justification for using an unnecessary policy of deliberate cruelty?

First Lady Melania Trump was reported as believing that “we need to be a country that follows all laws, but also a country that governs with heart.”  Well said.  The rule of law protects us from autocracy, dictatorship, and the cult of personality.  But the rule of law must also be applied with critical thinking, conscience, and common sense if it is truly going to provide the access to justice that it promises.  We lawyers are educated, trained, and experienced in reading, interpreting, and arguing the meaning and application of the law.  We must keep speaking up and using our skills to be sure the rule of law is not perverted and continues to provide access to justice and the fairest results possible.