Tuesday, August 27, 2013

Two’s Company, Three’s a Crowd:
Compliance Officers, In-House and Outside Counsel

Large scale healthcare providers often have not only one, but three, places to turn when faced with a legal or compliance issue.  They can rely on in-house counsel, outside counsel, or a compliance officer for the right answer.  It is important that each of these entities knows and understands the role they play for the healthcare provider. As the saying goes, two’s company, and three’s a crowd.  Tasks can overlap, and responsibilities can be muddled if roles are not clearly delineated among the three.  At McBrayer, McGinnis, Leslie & Kirkland, PLLC, two of our healthcare attorneys have first-hand knowledge of how these roles intersect because they have served in a capacity other than outside counsel for healthcare providers. The knowledge and experience they gained from these past positions have served them, and their clients, well.

Clay B. Wortham served as Corporate Counsel for Walgreen Company from 2009-2012. In this position, he advised the Walgreens family of companies on fraud and abuse, Medicare and Medicaid, and privacy issues.

Anne-Tyler Morgan worked for Centene Corporation as a Compliance Specialist before joining McBrayer.  While at Centene Corporation, she served as a liaison between the company’s statewide health plan and the Kentucky Cabinet for Health and Family Services; led the preparation of materials for internal and external audits; researched legal and contractual issues that arose in the course of health plan operations; and facilitated the compilation, submission, and approval of statutory reports and communication materials.

Clay and Anne-Tyler recently took the time to elaborate on these legal and compliance roles and how healthcare providers can use all three efficiently and beneficially.

Q: With health care reform well under way, are providers relying more heavily on one of these three positions?
Clay:  So far, health reform implementation has been a complex and constantly evolving proposition for businesses that offer or help pay for healthcare services.  Corporate counsel and compliance teams have been following health reform developments carefully and can serve as an excellent resource for business teams who are seeking to implement reform requirements.  Outside counsel can help to supplement these efforts with additional information about developments and trends in health reform implementation, including any changes in effective dates for reform compliance.

Anne-Tyler: In my experience, all three roles are vital to a company’s success in navigating developments that arise in the world of healthcare law.  Depending on the size of a company’s in-house legal department, local outside counsel can give helpful perspective to a company regarding healthcare law at both the state and federal levels, while in-house counsel and compliance departments apply this information more directly to the particular business at hand.

Q: How can a provider know when in-house counsel is not enough? When is the right time to engage outside counsel?
Clay:  When I served as in-house counsel, we would make decisions about when to use outside counsel based on counsel workload, project deadlines and whether the matter at issue involved a specific skill-set that an outside lawyer might be able to offer to accomplish the task more economically from a time-resource perspective.

Q: In some instances, companies look to an in-house attorney as the compliance officer. What are the potential problems with one individual wearing these two hats?
Anne-Tyler: The ethical implications of representing a company as in-house counsel are more precise because of an attorney’s obligation to follow the Rules of Professional Conduct of the state in which he or she is licensed to practice law.  On the other hand, a compliance officer is often held responsible for certain actions taken by his or her company depending upon the company’s operating agreement and contractual relationships with third parties such as state governments.  These respective obligations to a state Bar Association and to the company itself may conflict in some situations.

Q: How is your approach as outside counsel different from your approach as corporate counsel and a compliance officer, respectively?
Clay: In-house, you have the opportunity to work with folks on projects and to see those projects evolve and hopefully reach fruition through the cooperative efforts of business, compliance and legal.  As outside counsel, I seek to be resource and to facilitate the project in any way that I can.  This can save the business teams time and permit them to focus on certain elements of the project to keep it moving forward in a timely manner.

Anne-Tyler: As outside counsel, I am often less immediately familiar with the inner workings of a company, which makes it all the more important to acquaint myself with a client’s particular needs.  Every company is set up differently, and it is crucial to ascertain a client’s operational strengths and opportunities for improvement.  When working directly for a healthcare company, I also knew most of my fellow employees and the ways in which they served the organization.  As outside counsel, I tend to work more closely with a few key company representatives, and I rely upon their input and expertise to formulate opinions on the client’s behalf.

Q: What is the one thing that you learned in your previous position that has made you improve in your current role? 
Clay: Experience “in-house” causes me to look at client matters from more of a “real world” implementation perspective.  I am more aware of business, operational and financial considerations that my colleagues in-house are working with, and I am better able to tailor our services to meet their needs.

Anne-Tyler: Having worked “on the inside”, I tend to look at any given situation through multiple lenses.  I pay attention to clients’ operational, logistical, and financial concerns as well as advising them on the potential legal ramifications of any action that they may choose to take.  When approaching an issue, I try to find the best answer from a business perspective while working in compliance with the law.

With growing litigation, regulatory enforcement, and the ACA’s goal of bringing healthcare to all, it appears that individuals in all of these roles have their work cut out for them. If you are a provider and are seeking outside counsel, Clay, Anne-Tyler and the rest of the experienced health care attorneys at McBrayer are available and ready to meet your needs.

Ann-Tyler Morgan
McBrayer, McGinnis, Leslie & Kirkland, PLLC
Lexington, Kentucky

Clay B. Wortham
McBrayer, McGinnis, Leslie & Kirkland, PLLC
Lexington, Kentucky

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