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The Health and Human Services’ Office of Inspector General (OIG) maintains that hospitals can successfully outsource a variety of compliance tasks, including training and education, maintaining hotlines, auditing, and sometimes even the compliance officer function itself.
But recent congressional investigations that uncovered consultants bilking federal health care programs highlight only one of the many problems that can arise if health care consultants are not screened and selected carefully and the agreements made with them are not carefully and thoughtfully crafted.
"I am glad they are working to extricate the bad apples we have in our industry," says Roy Snell, CEO and executive director of the Philadelphia-based Health Care Compliance Association (HCCA). "But we need to understand that there are many highly qualified and ethical consultants as well," he adds.
Snell says the first thing hospitals should do is know who they are dealing with. One way to do that is to look for certification. In fact, one of the purposes of establishing HCCA’s certification program was to help potential employers of consultants and nonconsultants more easily identify individuals with a baseline knowledge of health care compliance, he adds.
HCCA certification requires significant education and experience and represents a relatively inexpensive testing process, Snell says. But even when hospitals select an appropriate consultant, many things still can go awry.
Here are some potential pitfalls and possible protections that health care attorney Gerald Griffith of Honigman Miller in Detroit says providers should look for when establishing a consulting relationship:
"Ideas and experience are a consultant’s stock and trade," asserts Griffith. He says hospitals should explore provisions to guard against this, as well as the possibility that consultants may wind up hiring certain employees at the end of the engagement.
During the bid process, he says, providers should spell out specific tasks and deliverables as well as specific duties and the standard of care for performing those duties.
Griffith says providers should review sample contract terms in the request for proposal letter. "Then you can find out relatively early in the process what key contract terms you feel strongly about and may pose a problem with the consultant," he explains. "That may affect your decision in the selection process."
The independence of the consultant may be necessary for a variety of reasons, such as justifying the fair market value of a transaction. If consultants have a stake in the outcome, such as being paid based on the percentage of the purchase price of a hospital, it may undermine that credibility, he warns.