AHLA. E. Legal Ethics: Who Owns Compliance in an AMC/University? Professional Responsibility and Organizational Considerations

Transcription

1 AHLA E. Legal Ethics: Who Owns Compliance in an AMC/University? Professional Responsibility and Organizational Considerations Leah B. Guidry Huron Consulting Group Inc Chicago, IL Jeffrey D. Kahn Executive Vice President and General Counsel The Children s Hospital of Philadelphia Philadelphia, PA Rachel Nosowsky Deputy General Counsel University of California Oakland, CA Eric W. Sitarchuk Morgan Lewis & Bockius LLP Philadelphia, PA Legal Issues Affecting Academic Medical Centers and Other Teaching Institutions January 22-23, 2015

2 AHLA - Legal Issues Affecting Academic Medical Centers and Other Teaching Institutions (January 2015) Leah B. Guidry, Huron Consulting (Moderator) Jeffrey D. Kahn, EVP and General Counsel, CHOP Rachel Nosowsky, Deputy General Counsel, University of California Eric W. Sitarchuk, Morgan Lewis & Bockius Background AMC Concerns and Challenges Mission - excellence in patient care, research, and teaching Reputation - impact of unethical or unlawful action on external mission support (patients/payers, grantmaking agencies, fundraising) Governance structure (rarely top-down, typically matrixed and decentralized), stakeholder groups Government Concerns Avoid overpayments; recover those not avoided (and penalties to dissuade future misconduct) Recognition of complexity in AMCs (cf. Draft Research Institution CPG, re: definition of roles and assignment of responsibilities) - maybe (?) Culture of compliance, organizational commitment Complainant/Whistleblower Concerns Institutional recognition of and appropriate response to concerns Compensation 1

3 Attorney Obligations Rule client defines objectives of representation and consults with client re: means to achieve (so who is the client) Rule lawyer provides client with sufficient information to make informed decisions regarding the representation Rule lawyer maintains the privilege (subject to client's right to waive), with limited exceptions (comply with law, prevent death or bodily harm, prevent crime or fraud, prevent injury to client) Rule proceed as reasonably necessary in the best interest of the organization when presented with facts indicating individual or organizational misconduct; refer up misconduct; waive privilege to prevent substantial injury in the face of inaction, but not information related to the lawyer's representation to investigate a violation or to defend the organization or an officer, employee, or other constituent against a claim arising from an alleged violation Rule role as counselor/advisor - exercise independent professional judgment and render candid advice, considering relevant moral, economic, social, political factors Compliance Officer Obligations - HCCA Principle I - embrace the spirit and letter of the law; adhere to highest ethical standards, contribute to the public good - HCCA Principle II - serve with integrity, exercise unprejudiced and unbiased judgment, promote effective compliance programs ABA Model Rule a lawyer is subject to the rules of professional responsibility when providing law-related services unless she takes appropriate steps to assure the person receiving the services understands the person is not acting as a lawyer and that the advice receive is not privileged 2

4 Opportunities for Overlap Compliance Legal Review/respond to reports of noncompliance Design/coordinate independent invesitgations and CAPAs Participate with counsel in selfdisclosures/other reporting Provide legal advice to institution concerning interpretation of the laws/regulations and options for response to ID'd problems Perform any investigation necessary to the provision of legal advice; advise on potential corrective actions to avoid future legal risk Report up - and out, as necessary; generally represent the institution in connection with internal/external reviews and investigations Authority to review all relevant documents and other information - in consultation with counsel Maintain privilege so clients can confidently seek and secure legal advice, except as necessary to prevent substantial injury to corp Conflict May be Manufactured or a Matter of Perception Presumption that an independent compliance professional will be more aggressive in her interpretation of the organization's acts or omissions than counsel will be Presumption that counsel's ethical obligation to protect the organization or act and advise in its best interests is somehow in tension with the compliance officer's obligation to assure the organization effectively prevents, identifies, and corrects fraud, waste, and abuse 3

5 Joint Goals Common Purposes Promote policies, processes to effectively prevent, identify, and correct unlawful and unethical conduct In response to complaints or concerns: Assure appropriate investigation Assure accurate and complete factfinding process and reliable interpretation of relevant laws and regulations Inform institution/client of conclusions, recommendations, and assure reasonable/appropriate response Approaches Clear separation of roles, responsibilities in connection with various activities Parallel (and potentially duplicative) reviews and investigations, with potentially inconsistent conclusions and recommendations Integrated reviews and investigations (e.g., compliance performs fact investigations, raises potential legal/regulatory issues; counsel provides final interpretation; joint recommendations to client) 4

6 Measures of Success Is the compliance function well-designed? Will it be applied in good faith? Does it work? - James Koukios at Association of Corporate Counsel Annual Meeting 5