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HCCA Compliance Institute 2016 — Session W9
Stay On Target: Managing Auditors,Consultants, Lawyers and Experts
Catharine FortneyDirector of Enterprise ComplianceDenver Health & Hospital Authority
[email protected] 52433471.1
Jeffrey FitzgeraldPolsinelli PC
Good Morning HCCA!!
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MANAGING CONSULTANTS/EXPERTS 1.0 (THE BASICS)
When to engage outside consultant/expert
Standing engagements
Budgeted and periodic reviews/projects– In work plan
– Required for validation
– Part of new business development, service line expansion
Incident or situation based– Audits and investigations
– Hotline issues and allegations of noncompliance
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When to engage a lawyer
Benefits of lawyers
Privilege 101
– Attorney‐Client Privilege: confidential communication between lawyer and client for purpose of providing legal advice
– Attorney Work Product: materials prepared by or for an attorney in the course of legal representation, especially in preparation for litigation
When to use the privilege for a compliance assessment
– Default position: compliance reviews are not privileged
– Exception: if specific basis to believe there is a high likelihood of material noncompliance
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When to engage a lawyer
Using internal vs. external counsel
Second opinions and dispute resolution
Lawyers can be used to get traction or as a form of elevation
Legal opinions (for you and/or the file)– Generally, get the advice verbally first, then consider if you need
something in writing
– When do you need them
– When do you not need them• Memos that say “xyz is not legal” are rarely helpful
– How much detail is needed• Don’t get hung up on the word “opinion”
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How to Select an Expert
Formal RFP process– Advantages– General process– How many to include– What to expect
References– Never underestimate the value of a good Rolodex
Historical practice, organizational limitations & preferences Methods to measure quality and reliability Cost limitations
– When are branded experts worth the cost7
The Engagement Process
Scope of work
Bids / Pricing
Timelines
Deliverables
Staffing expectations
Data requests from the consultant
The value of constant communication
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MANAGING CONSULTANTS/EXPERTS 2.0 (MODERATE DIFFICULTY)
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Stay on budget and on time
Use of work plans– Upfront planning is essential,
– Written, but subject to updates
What is project/scope creep and how to avoid it– Human tendency is curiosity
– Everything must have limits
– Not everything needs to be part of this project
– Don’t turn over rocks that you are not ready to deal with
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Stay on budget and on time
Strategies for setting and keeping deadline– Standing check‐in
– Update emails
– Clear and written deadlines and cost points
– Who sets the deadline?
– Who sets the budget?
– Communication about the importance of the deadline and/or the budget
– Post‐review de‐brief 12
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Stay on budget and on time
Budgeted and periodic reviews/projects
– Setting milestones to measure budget and progress
– Reviewing invoices • Consider detail and overall value
Speak up!!
– On‐going communication of expectations
– Frank discussions are best
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Using Internal Experts
The value of finding and tapping internal resources
Areas ripe for use of internal resources– Health Information Management (HIM)
– Clinical Documentation Improvement (CDI)
– Accounting / billing
– Public and government affairs
– Audit Committee and existing audit functions
– Clinical experts
– Department leaders and Champions
– Physician leaders
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Using Internal Experts
Make strategic use of the compliance committee
Tips for getting an internal resources involved– Be creative
– Don’t be afraid to ask
– Don’t be afraid to experiment with different approaches
– Look for willingness to help/engaged staff – you can train on the “how”
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Engaging with the General Counsel orLegal Department
The benefits / value of in‐house lawyers– Confidentiality and Privilege
– Additional resources and skills
– Additional creditability and additional allies
– Different perspective on issues
Consider “whose issue is this” – But no need to abdicate or disengage
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Engaging with the General Counsel orLegal Department
Understand how lawyers view the world– Lawyers embrace (and create) ambiguity
• Lawyers resist polar options like legal vs. illegal or right vs. wrong
– Lawyers apply different standards to the same issue without concern
– Lawyers view others as the decision makers• Lawyers make peace with clients who do not always follow their advice
– Lawyers always want more data
– Lawyers never say “I don’t know” (even when they don’t know)
– Lawyers have personal views (and agendas) too 17
Engaging with the General Counsel orLegal Department
How to get a lawyer to see your viewpoint– Always think about how you frame an issue
– Expect and respond to the counter‐arguments head‐on
– Importance of gathering adequate facts in advance
• When in doubt, lawyers seek more data
– Acknowledge the ambiguities
– Distinguish between prospective advice and retrospective analysis
• Recommended future conduct is different from conclusions about historic conduct
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Engaging with the General Counsel orLegal Department
How to handle disagreements– If possible, discuss a process in advance
– Recognize that people can have different views, and that is okay
– Sometimes deferring is the right answer
– Sometimes a tie‐breaker is needed
– Deferring to an outside expert is a learned skill
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Managing interactions between consultantsand other employees
How to get the data consultants need to do their analysis– Data and fact gathering is likely part of each engagement
– Efficiency or internal resources can decrease costs
– Consider IT solutions or use of existing interfaces
– Think outside the box
– But limits are okay too
– Don’t forget the BAA
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Managing interactions between consultantsand other employees
Assisting with interactions and organization culture– Direct communication between consultant and others is common and
efficient
– You know the corporate culture, so you are likely the best person to assist with interface
– Consider yourself as facilitator
– Help manage expectations and demands on both sides
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Managing interactions between consultantsand other employees
How to handle overly large or vague data request– Typical reasons for a large or vague request
– Seek to understand the basis for the request and its breadth
– Look for incorrect assumptions
– Negotiation is acceptable and common
– Considered staged or step‐by‐step process
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MANAGING CONSULTANTS/EXPERTS 3.0 (ADVANCED)
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Managing “Bad” News
Compliance often means dealing with errors and imperfections
Continually think about use of the attorney‐client privilege
There is nothing sinister about getting a verbal report before it is “put in writing”
Consider your internal communication loop (no one wants bad news to be a surprise)
The rainbow: proactive compliance fixes things and therefore is never truly bad news
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Common Pitfalls (and how to avoid them)
Getting the answer to the wrong question
When the expert turns out to not have the right expertise
Personality conflicts
Unavailability and lack of communication / customer service
The consultant who wants to make every molehill a mountain
Use of unfortunate language
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When to get an updated opinion
What does the (old) opinion say?
Operational developments and expansion
New business lines and activities
Change in regulations or industry practice
New enforcement activity
Age of the opinion alone?
Risk level stated in the opinion
Risk tolerance of the current leadership
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Questions?
2952433471.1
HCCA Compliance Institute 2016 — Session W9
Stay On Target: Managing Auditors,Consultants, Lawyers and Experts
Catharine FortneyDirector of Enterprise ComplianceDenver Health & Hospital Authority
[email protected] 52433471.1
Jeffrey FitzgeraldPolsinelli PC
