A strategic move that helped a client harness a quirk of Texas civil procedure to overcome a federal agency’s immunity from suit drew attention from health-care lawyers all over the country.
Edward Vishnevetsky represented a medical-equipment provider, All Star Oxygen and Home Medical Equipment LLC. His client wanted to know how the Centers for Medicare and Medicaid Services (CMS) conducts Medicare audits, because All Star had been placed on audit status and its Medicare payments cut off. But the agency and one of its contractors wouldn’t respond to an open-records request, Vishnevetsky says.
John Browning, lead counsel for the matter, says Vishnevetsky came up with the strategy that ultimately released the Medicare payments All Star was seeking: filing Texas Rule of Civil Procedure Rule 202 petitions on All Star’s behalf to obtain the information through pre-suit testimony and discovery.
The client filed the petitions in All Star Oxygen and Home Medical Equipment LLC v. Health Integrity LLC and All Star Oxygen and Home Medical Equipment LLC v. Melanie Mueller, according to Browning, who’s now administrative partner in Lewis Brisbois Bisgaard & Smith’s Dallas office.
"It was a very thinking-outside-the-box strategy that Edward came up with," Browning says.
Browning says after CMS placed All Star Oxygen on audit status, thereby cutting off All Star’s Medicare payments, All Star needed to know if CMS was following its own rules for audits; but the federal agency refused to disclose any information and, with few exceptions, is immune from suit.
But Vishnevetsky found federal court rulings that Rule 202 petitions are not suits, he says.
In 2010, Dallas’ 101st District Court and the 116th District Court issued orders in Health Integrity and Mueller, respectively, granting All Star’s petitions to take depositions.
Browning says the agency removed All Star Oxygen from audit status and released the Medicare payments that had been withheld.
"By the time our matter was concluded, they [All Star Oxygen] were within days of having to shut the company down," he says.
Vishnevetsky, the son of Ukrainian immigrants, says he originally thought he wanted to go to medical school but became more interested in the "policy angle" of health care after taking classes in government and social justice.
"I thought I could effectuate more change as a lawyer than as a health-care practitioner," he says.
Vishnevetsky says that after earning his J.D. and a master’s of health administration in 2007 from the St. Louis University School of Law, he began practicing at Brown & Fortunato in Amarillo and moved to Gordon & Rees in Dallas in January 2009. He says he joined Thompson Coe Cousins & Irons in Dallas nine months later, where he began working with Browning, then a partner in Thompson Coe. He joined Munsch Hardt in 2011.