IndyBar: Building the Record – Why Documentation Matters

By Sarah M. Crosby, Attorney at Hall Render Killian Heath & Lyman PC

Lawyers spend countless hours poring over hundreds, sometimes thousands of documents to frame a case in precisely persuasive ways. But what happens when the documents you need are not available? As one plaintiff recently found out, the answer is not to bury your head in the sand and hope for the best.

In the recent case of Atrium Health Carolinas v. Kennedy, out of the D.C. District Court, a hospital system’s appeals were dismissed after the hospital failed to obtain the necessary documentation to support its case for more than eight years. As the administrative tribunal that originally heard the appeal and the district court ultimately found, the hospital’s critical error was failing to alert the tribunal overseeing the case that hospitals had run into problems getting necessary evidence from the state Medicaid program. The tribunal’s rules specifically required parties to exchange all supporting documentation as exhibits and explain why any documents remain unavailable. But that is not what the hospital did. Instead of explaining the difficulties it was having, the hospital instead simply told the tribunal that the evidence was going to be supplied under separate cover. As months ticked by, and the evidence was still not supplied to the tribunal, the hospital still failed to explain the challenges it faced. Subsequently, the tribunal dismissed the hospital’s claim for failing to follow the procedures.

The plaintiff’s problem with their record did not end there – during their appeal to the federal district court, the hospital provided an affidavit outlining the measures it had taken to secure the necessary evidence. However, the district court pointed out that the affidavit was never provided to the administrative tribunal. Because the district court’s review was limited to the administrative record that was before the tribunal, they declined to review the contents of the affidavit.

The record built in a case defines the boundaries for judicial scrutiny. Regardless of if your cases are heard before administrative tribunals or in state courts, building a complete and accurate record is a critical component of the practice of law. When taking appeals into federal court from an administrative proceeding, a court’s review is often limited to the record that was built below. The same is true in state courts absent limited, and often extraordinary circumstances.

Lawyers must be diligent in gathering all evidence and creating a cohesive and comprehensive record. Work to obtain evidence early and ensure all evidence is actually admitted into the record. If the key evidence not obtained or is omitted or overlooked, it may as well not exist.•

Sarah Crosby is an experienced attorney who specializes in providing counsel to clients navigating Medicare reimbursement issues. One of her key areas of experience involves handling appeals in front of the Provider Reimbursement Review Board and Federal Court, demonstrating a strong commitment to helping clients navigate the complex health care reimbursement process. Sarah began her law career as an Assistant Attorney General for the State of Washington where she prosecuted civil and criminal Medicaid fraud cases. After returning home to Indiana, Sarah shifted her focus to helping Social Security disability claimants prior to joining Hall Render’s reimbursement team.