In this episode…

On vetting engagements, our guest, Ms. Jean Acevedo, notes “How do you vet to make sure that you don’t take something that’s a losing battle . . . because you don’t want to find yourself two months in where you’ve wasted somebody’s time and money.” To which she recommends, “make sure you’re comfortable with what you’re an expert [on]” and “know where you are not an expert”.

Additional topics include dealing with pushy attorneys, report writing, and taking a proactive approach to engagements, where she notes, “I’ve learned that I need to be curious . . . and not assume that because something wasn’t stated by the lawyer, that it doesn’t apply . . . it’s up to the expert to know what he or she needs and to voice it.”

Episode Transcript:

Note:   Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Jean Acevedo, LHRM, CPC, CHC, CENTC, AAPC Fellow, President & Senior Consultant at Acevedo Consulting

Noah Bolmer: Welcome to Discussions at the Round Table. I am your host Noah Bolmer, and today I am excited to welcome Jean Acevedo. She is a licensed healthcare risk manager, certified professional coder, and the owner of Acevedo Consulting, a full-service healthcare compliance firm specializing in coding and 3rd party payer billing. Additionally, Acevedo Consulting maintains a robust expert witness practice with numerous engagements relating to fraudulent billing and overpayment appeals. Ms. Acevedo, thank you for joining me here today.

Jean Acevedo: My pleasure. Nice to be with you, Noah.

Noah Bolmer: Let’s just jump into it. You started Acevedo Consulting in 2000, I believe. How did your practice begin? Had you served as an expert witness before starting the firm?

Jean Acevedo: No, I had not served as an expert witness before the firm was founded. I doubt that when I found it, I even thought about that as a quote business line. But I happen to have been lucky enough to know a few good, prominent healthcare attorneys, and somewhere along the line in the early years of 2002, I think it was. I got approached by a prosecutor for the State of Florida for a billing fraud false claims case.

Noah Bolmer: Okay.

Jean Acevedo: I remember thinking, wait a minute, they are looking for a witness for the State of Florida, and my consulting business clients are doctors. Can I do that? It was a difficult decision to make. My first thought was would the doctors think I was a turncoat if I was serving as an expert against another physician? Then, I realized that since the firm’s focus is compliance, I needed to stand up and not fear getting the bad guys out of the system. That was my first engagement, and during the court case, I found out there is a process for being deemed a witness. I am deemed an expert. The judge deemed me an expert in physician documentation and coding when I was on the stand, which is fascinating. I was like, wow, just because he said so, now I am an expert. It was an interesting case and, I felt good that I was able to help get one of the quote/unquote, bad guys out of the system.

Noah Bolmer: I want to touch on something that you mentioned. You said that you were unsure whether to take your first case and it is interesting you bring up that not only do you have to make sure that you are an expert in the area that you are approached to be an expert on, but what affects that might have on your career. That is not something that I have talked about on this show. Can you walk me through a little of that call?

Jean Acevedo: Sure. I had started the business to provide for primarily small position practices. That is not the case today. For small physician practices to have an effective compliance program, do education, and write their policies, the Office of the Inspector General’s Physician Compliance Guidance had to come out. Within two months, I think, of the business being incorporated, I knew plenty of large firms would charge a physician a five-figure minimum to come in and help them do this. There were plenty of small physician practices without those resources. They were up against the same regulatory environment. Just a matter of doctors, right? The system is the same regardless. When I was approached by the State of Florida my thought was wait a minute, if I am here helping the physicians, will they think that I am a traitor if I testify against another physician? Then, I realized that the opposite was true. The moment that I broached that topic with a physician to test the waters, I said, “Okay, am I going to be out of business because of this one court case?” The reaction was one of, “Then you bring extra insight to your work.” I was like, “Yeah that is it.” So, it was true. The experience did give me insight. In this case, it was the state. What is it that the investigators are looking for? What is the difference between fraud and an innocent miss. Our regular healthcare reimbursement system is so complex. It is fraught with risk and there is a big difference between innocent error and a false claim.

Noah Bolmer: Right of course. Is this something that you have had to struggle with? Do you have to turn down a significant number of cases since then?

Jean Acevedo: I have only turned down one or two and that was because I had a conflict. So, for anybody starting as an expert, it is important to realize if you have a personal or professional relationship with either plaintiff or the defense. That is in my mind because I am strict about the ethics of this. Even vaguely related it would be difficult to be an objective expert because I do think besides being a subject matter expert, right?

Noah Bolmer: Right.

Jean Acevedo: That would qualify you as an expert. Independence and objectivity have got to be paramount. It cannot be, “Well, I know this doctor, or I know this hospital CEO.” What I realized the first couple of times I was deposed was that the side taking your deposition is not your friend. My first deposition was 8 hours long. When I left, I was mentally exhausted. My son was home from college, and I remember calling him to say, “It is finally over.” He was shocked that I had been there all day. I was so stressed that I said, “I need you to order me a pizza with pepperoni and extra cheese, and please put the Coors in the freezer.” I remember the feeling of someone trying to discredit me, my expertise, my knowledge of the case, and my opinion that they were getting me to state on the record. That was the most difficult deposition. Not only for the length of time but for how brutal the lawyer was. But then, as in so many things in business, I realized I could say, “That is it, I am not going through that again.” Or I could say the attorney was doing his job. He is representing his client, who was on the opposite side of who I was representing.  His job was to discredit me and find holes that would get his client a not-guilty verdict, a lesser penalty, or whatever. I realized it was just business. That is a good lesson for anybody that is just starting. Do not take it personally.

Noah Bolmer: How important is preparation when it comes to that? In other words, were you kind of caught off guard by that long 8-hour deposition? Did you feel prepared to go into it for what might happen? The kinds of questions they might ask. Did they do any mock cross-examination or anything to prepare you for it?

Jean Acevedo: That is a great question. That was early in my career and the answer to all the questions would be no, I did not feel prepared. There were not any mock cross-examinations, et cetera. Hopefully, all of us in our personal and professional lives take experiences and learn and grow from them. That was one of the occasions where I realized I needed to step up and ask more questions of the attorney with whom I was working.

Noah Bolmer: So, you feel that an expert needs to take a proactive role in the preparation.

Jean Acevedo: Oh, most definitely. There was a case not that long ago within the last two or three years that I felt like the attorneys were limiting the information I was being given.

Noah Bolmer: Interesting. How do you know?

Jean Acevedo: Because I kept asking. I do not know if this case was ever settled, and I do not want to say anything because of the narrow specialty. The IT was a physician who was being charged, and this is such a common situation nowadays with billing for services that he did not provide. The billing requirements for Incident 2, where his name could have been on the claim when one of his staff had provided the service. I started getting red flags when the circumstances were not met, which is another piece of advice for experts. Follow your instincts. I started getting little red flags that did not seem to make sense. I had done work with one of the three attorneys representing this position before. So even though I had started at the comfort level, I was not comfortable. I started getting a little suspicious that I was being fed information that was beneficial to the client, but not necessarily in the long run, because again, if I am deposed somewhere and they say, “Well, Ms. Acevedo, didn’t you know that?” and I say, “No” I look like an idiot.

Noah Bolmer: Right.

Jean Acevedo: There goes my credibility, and I did have that happen to me once. So, I started asking for more documents and supporting evidence for one of the positions the attorneys were taking. I got radio silence.

Noah Bolmer: Interesting. So, you felt that there was some funny business going on.

Jean Acevedo: Yes, yes.

Noah Bolmer: How did you deal with it? Did you walk out of the case? Did you still complete the engagement?

Jean Acevedo: These engagements are open-ended for the most part. They may want an expert report, or they may not. You may get to post your report, or you may not because things get settled before going to trial. I have been an expert in civil litigation where, based on my expert report, there are no depositions. Suddenly, everybody is settling, so it is like, Good, I guess I am a good wordsmith. I lay out the truth, the facts, and the correct background information. In this instance, what I finally did when I realized “Okay, I do not know if there are deadlines. I am going to be held accountable, but I am getting this radio silence.” I also realized that the lawyers would probably not say, “No. Jean was right. She was on top of stuff. It was us.” So, I said, “Okay, this is not leaving another voicemail. This is an e-mail. I do not necessarily like to use e-mail as a CYA, but to make sure that what you said is on record.

Noah Bolmer: Yeah. Preserve it. Sure.

Jean Acevedo: Yeah, right. I finally wrote. I had before and I had called, and I am like, “I am not getting a response. Something tells me they do not want me to have what I am requesting. If I was their expert and there was something I could not get I would not be used and embarrassed in a deposition or court of law. Finally, I wrote an e-mail saying, “I have tried several times to see if you could get me ‘X.’ You know I am right. Now, I am going to assume that ‘X’ does not exist, or you cannot get a hold of it. So, I am going to stop my work. if anything comes through and you still need my assistance. Please let me know.” I ended it very nicely because I did not know the circumstances or if there was something. I never heard another word. So, I think my instincts were good.

Noah Bolmer: Do you have any advice for attorneys about what situations to avoid? The other side of the coin is what vetting of cases can experts do, or not do, in advance to avoid these situations? Is it too much of a moving target to be able to do that?

Jean Acevedo: The last part of your question is interesting. How do you vet to make sure that you do not take something that is a losing battle? As an expert, you do not want to find yourself two months in and wasting somebody’s time and money.

Noah Bolmer: Right.

Jean Acevedo: There is a twofold answer for avoiding that. One is to make sure you are comfortable with what you, as an expert, have turned down. Cases in an area, such as hospital billing, et cetera, where I know I am not an expert. If something else comes up with professional billing, let me know. It is important to know where you are not an expert. You do not want to go down a path that could be the death knell to your career. Through the years, I have learned that when I have a case it is important to first, be upfront about whether you think there is a case. In Palm Beach County, Florida, there is an extremely well-known criminal defense attorney, whose name will not be mentioned. I was an expert for a federal fraud case for him, that ended as well as he or the provider could have hoped. He contacted me, once or twice afterward, and each time I was like “No, I cannot. It is wrong. This is a violation. I cannot figure out how to put lipstick on this right now.” I was at an American Health Law Association Academy meeting a few years ago, and this lawyer sat down next to me in a session, and I was like “Oh, how are you?” He was having lunch with two other attorneys, and they were asking him about what I did, and this attorney that I am referencing said, “Jean is a good expert, but she will not . . . ” Now, I am paraphrasing, and I do not want to misquote him or any other attorney. “But she does not necessarily take the path.” I know this is not exactly how he said it, but the meaning is the same. “She will not necessarily go down the path I want her to go, so I cannot use her as much as I would like.” I remember sitting there thinking I consider that a badge of honor.

Noah Bolmer: Exactly right. A moment ago, you mentioned how important it is to know what you know what you are an expert on, and not go outside of it. You have spent a significant amount of time retaining those certifications. You hold 4 distinct professional licenses, and you are an APC fellow. Is this kind of licensure the kind of thing that attorneys look for when they are hiring you, or are they looking for your battle record?

Jean Acevedo: The attorneys that reach out to me and that I work with have never once questioned anything about my credentials. For them, it is always “We read a couple of your reports” they get on whatever database attorneys use where they research, and “Wd we like the format and your approach. It is the other side that will

Noah Bolmer: Do the oppositional research.

Jean Acevedo: Yeah, do the oppositional research and try to question how this credential has anything to do with what you are talking about. So, because there is no degree in the field of compliance or coding. You cannot have a master’s in medical coding, right?

Noah Bolmer: Right.

Jean Acevedo: I think it is important and people do have that first impression. For instance, I am going to a doctor, but he does not have an MD at the end of their name, Is this a doctor? This is a human reaction that you have credentials.  I think it is important to have credentials, and I know when I am asked about mine, and, oh, by the way, folks, when you are in a deposition, and they state your background, that is the time to toot your own horn.

Noah Bolmer: Given the full alphabet soup.

Jean Acevedo: “What is the CNTC?” I said, “Oh, I am a certified ENT” and throw coder, but I did not take the exam. but I sat on the steering committee that wrote the exam for the Academy.

Noah Bolmer: Nice, excellent, excellent.

Jean Acevedo: Some of those things can be very helpful. Where is it that shows beside you saying that you are an expert? Right. You alluded to continuing education. There are a fair number of CPU’s that you need when you have more than one designation credential from the APC or HEMA and encoding. Those are the two recognized.

Noah Bolmer: In general, how can other experts who are maybe not in the healthcare field use that advice? What is important when you are advertising and not that you necessarily advertise, but what makes you look good as an expert? Why do attorneys come to you? Is it because they look at your past reports and they have been of high quality, and you have been on the winning side? Or is there some other mechanism that you use?

Jean Acevedo: We do have a website for Acevedo Consulting, and as anybody would see, it does not list anything about being an expert witness, which is good, and challenging work, but I would have no brain If I did it every day. Having a website and making sure that you understand the wording so, that if someone is doing a search of your firm, or you personally, independent would come up as a response to the search. That is probably the most important thing. We get a fair number of attorneys, and we ask how did you hear about us? I was doing a Google search and

Noah Bolmer: The old SEO.

Jean Acevedo: Right. A little-known fact, I did have a healthcare Internet technology company for a year and a half and a long time ago. So, I have enough knowledge of planting words and embedding them on the website to be dangerous. I do not know about advertising. I have never advertised, so I cannot speak to it other than the website and presentations. To expand your practice as an expert, there are meetings of highly recognized healthcare organizations, such as the Healthcare Compliance Association and the American Health Lawyers Association, where one can speak. Your audience is liable to be the attorneys who could be calling you. There is something about being a presenter, and unless you are bad you are looked on as an expert by everyone in the audience. Why would they be listening to you if they did not think you knew what you were talking about? The fact that the organization may have asked you or is paying you to speak, etcetera, puts that seal of an expert on you and your topic. There are some good things to do. One of the things that has been helpful is that I believe in myself when I am deposed. I take cases from both sides. So, no one says, “She is just a shill for the doctors.” I do work for the Department of Justice, Investigative consulting, expert witness work, and the FBI, as well as the local.

Noah Bolmer: Right.

Jean Acevedo: We are not a local physician group or other healthcare provider. I think those are some of the important things and I think this goes with an answer that I did not give you completely before. Be curious and ask plenty of questions. Do not let the attorney tell you that night that you do not need to see that. Because if that attorney had your expertise, they would not have called you in the first place. I know many times when I have read someone else’s deposition, interrogatories, or something else in the case file. I say, “Oh my God, I didn’t know that.” And then I call the attorney and say, “There is this little hidden gem for you in this other document.” So be curious. Realize that you are the master of your destiny. In this case, when it comes to what the expert is doing and what the lawyers are hoping that you will do for their client. So, you need to lay out the plan from your perspective and stick with your guns.

Noah Bolmer: When you are writing the reports for the attorneys, do they come to you with a skeleton format where you are filling in your opinions on technical issues, or are you writing them whole cloth?

Jean Acevedo: I am typically writing them whole cloth, so there might be a rebuttal because when you start writing the report, the other side has its experts that write its report and try to dispute your report. Then you are doing your rebuttal to the other expert’s rebuttal of your report. By the time you get into some of those. rebuttal reports, you may have the attorney making some suggestions as to a path not to feed you knowledge, but how best to mount your argument.

Noah Bolmer: Do you ever feel overly influenced? How much do you have to push back on attorneys when it comes to report writing?

Jean Acevedo: It has been rare for me to have to push back.

Noah Bolmer: Okay.

Jean Acevedo: I am lucky that the attorneys that I have had the pleasure of working with have more of a collaborative arrangement. One of the things that I did not know for a long time was depending on the type of case. civil lawsuit, criminal defense, and others, there are different requirements for the reports. You need to make sure that you are open unless you know the technical underpinnings for the case, what type of reports, when they might be due, etcetera. I am glad I was because otherwise, I would have had the wrong formats for things. The requirements of some cases, depending on the type of case and the court where it is filed, are required to be in the report, and a basic format that you need to stick to.

Noah Bolmer: Do you find that the attorneys have been reasonably communicative in terms of letting you know what those boundaries are in the correct format?

Jean Acevedo: That is another great question because I think I realized that it is not because they are choosing to be remiss, but I think it is something that they are assuming that I know. It is like driving a car. If this is when you are learning, I may forget to tell you to put your blinker on. Soon you are going to know.

Noah Bolmer: Right.

Jean Acevedo:  I have learned and this goes back to my statement about being curious because there have been many instances where I have asked at the beginning, “Tell me, are there reports that are going to be required? Are there specific points within this litigation that I am going to need? Are there specific formats that I need to stick to, etcetera?” I have learned that I need to be curious, and not assume that because something was not stated by the lawyer that it does not apply. It is also up to the expert to know what he or she needs and to voice it.

Noah Bolmer: That is excellent advice. Before we wrap up, I would like to pivot to wind up the engagement. Do you typically follow a case to its conclusion? Do the attorneys keep you abreast of where the case is? Kind of in general in progress? If it is near the end? And are you concerned about winning the case when you have already moved on at that point to your next engagement?

Jean Acevedo: I am interested in winning. I am hoping I have done something that helps the case be on the side I am representing. As far as following the case, I want to know how it turned out and sometimes attorneys automatically do that. I found that in cases that go to trial. The lawyer that I am working with is most of the time going to probably call me. I have gotten Friday night calls. We won or not because it is so important to the client.

Noah Bolmer: Of course.

Jean Acevedo: I have not found an attorney that minds following up and if you are trying to market your business, I would never have thought about it this way. I am naturally curious.  I want to know what happened. But I am sure that if I was the attorney, I would look favorably at someone who did not just do their job and then move on to the next. That is an interest.

Noah Bolmer: Finally, when we are wrapping up. I would like to touch on billing. Do you typically bill projects by hour or some combination thereof?

Jean Acevedo: With expert witness cases, my experience is that the amount of time and expertise that is needed is all over the map. I have not been able to find an equitable way to bill a project fee, So, bill hours for everything.

Noah Bolmer: Do you take a retainer or anything like that?

Jean Acevedo: When you are an expert, the lawyer is typically paying, and most lawyers do not want to put their law license in jeopardy by stiffing someone. but they also understand establishing credit by getting a retainer. They do the same thing. That is one good thing. You are not speaking a foreign language to your client, your client being the lawyer or the law firm. They understand retainers, so getting a retainer and then billing hourly

Noah Bolmer: Of course.

Jean Acevedo: I would say because I have not had many cases that were over a long before one would have thought. Make sure you are good about returning any unused retainer.

Noah Bolmer: Sure, of course.

Jean Acevedo: It is not your money. I am not quite sure how anybody could do a project fee.

Noah Bolmer: Finally, do you have any last advice for new experts or attorneys that you would like to hammer home before we sign off?

Jean Acevedo: One message for both attorneys and new experts is to be curious and ask questions. Do not feel like you should know this. You do not want to look silly and ask. There are no stupid questions, only ones that you have not asked and are going to kick yourself for not asking. For attorneys, remember that you are probably not working with another attorney, so make sure that your expert feels comfortable enough to ask you questions about procedures and processes. Do not make the expert feel silly, which was why they did not want to ask you in the first place. Make sure that both sides work collaboratively. You are all working towards the same goal and hopefully, have a good result for the client, whoever it is that is being represented in whatever action. For newer experts, budget your time well. That was a lesson I learned after being pressured to get something done and I am like, “Oh my God if I had only asked whether there was going to be a report. Then, I never would have taken these other projects I am working on. Now, I have to burn the midnight oil to get this report done on time. It is not a matter of calling the court and saying, “Can I have another week?” It does not work that way. Time management is important for experts.

Noah Bolmer: That is excellent advice and thank you, Ms. Acevedo, for joining me here today.

Jean Acevedo: My pleasure, Noah. I enjoyed it. Thanks.

Noah Bolmer: And thanks to our listeners for joining us for another Discussion at the Round Table.

Jean Acevedo, LHRM, CPC, CHC, CENTC, AAPC Fellow, President & Senior Consultant at Acevedo Consulting

Jean Acevedo is the owner of Acevedo Consulting. She is a licensed healthcare risk manager, certified professional coder, and is a sought-after expert witness for matters of fraudulent billing and overpayment appeals in the medical profession.