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AHLA's Speaking of Health Law
In-House Counsel, External Counsel, and Consultants: Navigating Financial and Regulatory Pressures
Kate Taylor, Associate Principal, ECG Management Consultants, speaks with Katie Tarr, Shareholder, LBMC, Alaina Crislip, Member, Jackson Kelly PLLC, and Payal Shah, Senior Counsel, Vituity, about some of the financial and regulatory pressures (and resulting compliance breakdowns) they are seeing in the health care industry and strategies and solutions for navigating the intersection of financial constraint and regulatory compliance. They offer insights from the in-house counsel, external counsel, and consultant perspectives. From AHLA’s Women’s Leadership Council.
Watch this episode: https://www.youtube.com/watch?v=qoc8699BvsA
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SPEAKER_03:Good afternoon. Thank you for joining us on today's podcast titled In-House Counsel, External Counsel, and a Consultant Walk into a Hospital, Navigating Financial and Regulatory Pressures. We're hoping this titled piqued your interest. It's not always a bad thing when these three professionals are working together on something, but it certainly can be. That said, we have a lot of great content for you today, so we'll go ahead and dig in. My name is Kate Taylor. I'm an associate principal at ECG Management Consultants. I've been providing valuation services for approximately 15 years, and more often than not, I am usually working alongside external counsel or in-house counsel for many of my clients. Today, I'm joined by three colleagues of mine on the Women's Leadership Council of AHLA, and you likely guessed it, but we do have an in-house counsel, an external counsel, and a consultant on this podcast. So I'll have each of them introduce themselves briefly. Katie, how about you get us started?
SPEAKER_01:Happy to. Thank you, Kate. As Kate said, I'm the consultant of the three of us today, and I'm happy to be here. My name is Katie Tarr. I'm a shareholder at LBMC based in Nashville, Tennessee.
SPEAKER_04:And my name is Elena Chrislip. I guess I'm the external counsel. I am a member at Jackson Kelly PLLC in their transactional and healthcare industry group.
SPEAKER_03:And I'm Payal Shah. I'm senior counsel at Vituity. It's a physician healthcare organization. And I've been practicing healthcare law in-house for many years. Okay. Thank you each for introducing yourselves. So I'm going to kick this off with a question for all of you. What are some of the most pressing financial pressures you've seen healthcare organizations grapple with over the last 12 to 18 months? I'm sure there's a lot, but if you can narrow them down to just a couple, that'd be great. Katie, do you want this? Yeah, go ahead.
SPEAKER_04:Oh, okay. I was just going to say some of the financial pressures that I've seen over the last 12 to 18 months, folks... grapple with are increased labor costs and workforce shortages, inadequate Medicare and Medicaid reimbursement, inflation, rising inflation costs has been a critical one. And also I think delays in reimbursement from a commercial practice payment perspective.
SPEAKER_03:Yeah, I was just going to say from a provider standpoint, we've definitely been seeing reduced reimbursement from the payers. And then the advent of the North surprises act and other regulations, you know, state or federal that have really, you know, put some hardships on the physician and provider industry and getting payment for their services has been really hard over the past few years and really the last year or so.
SPEAKER_01:On my side, I've seen a couple of things. One is what I hear come up all the time is uncertainty and with uncertainty of how different policies or market pressures are going to occur, how that's going to impact finances, people kind of tightening their belts and trying to hold steady and think about the future and plan for all of these uncertainties, which can take a lot of time and resources. And then in my everyday job, which is more on provider compensation. I'm seeing a lot of increasing subsidies for certain specialties. I think two comments from my colleagues here as reimbursements declining for physician services, then the required subsidies from the hospital is increasing. And then I've also seen a lot of competition for physicians, for practices in markets, some really competitive markets and getting some late night phone calls from my clients when their physicians are getting offers from other organizations and needing some quick responses. So those are some of the items that I've been dealing with lately.
SPEAKER_04:Katie, just to play off of that, I just wanted, when you said uncertainty, I think it would be, we'd be remiss not to raise the tariffs that went into effect this week. And that, you know, when we're talking about medical supplies and equipment and things like that, that physician practice groups and hospitals and health systems are relying upon. I think that kind of plays into this as well, that we're not even sure what that impact may have on these types of providers.
SPEAKER_03:Great point. And I've heard someone mention inflation, Katie, it may have been you. I've been hearing a lot of our provider clients mention that in terms of physician compensation. Can you talk a little bit about how you've seen that impact your day-to-day specifically? Sure.
SPEAKER_01:Yeah, so I certainly have heard a lot about it from my clients and their physicians. I've seen a couple different things occur. One thing that happened was around COVID and some other times, compensation really increased to... kind of account for all this different work and different situations that were occurring. So there were some really big increases. And now I've seen some providers say, well, inflation's gone up, I haven't gotten a compensation raise. But when we look at their compensation, it's actually pretty fair. And so it was kind of like they got this big bump a couple years ago. And now that the market's caught up, and there's not really room or opportunity or justification for an increase, but they feel this pressure because they've not seen an increase and they're seeing rising costs. That's one narrative I've been dealing with. The other is this narrative that compensation should be keeping up with inflation and Actually, the most recent MGMA annual comp study that came out, they have a wonderful report that I reference often. But it said that for the most part, physician compensation has been keeping up with inflation. But what is interesting is that productivity is also increasing. And so the compensation to work RV ratios that a lot of contracts are based upon are actually decreasing or holding steady, and those are not increasing. And the physicians, that's the number they see in their contract, they say, Oh, I've been at 52 per worker view for or five years. Why is that not increasing? Well, the market would show we're getting more efficient at doing things. We've got a lot of AI and resources and technology. And so you can see more people and patients in the same amount of time. And so your productivity is going up for the same amount of time. Generally, you're compensated roughly the same, same amount of time. And therefore, that ratio is holding steady or decreasing. There's some where it's increasing, but I had a slide in a recent presentation I gave where I showed a lot of the specialties that comp for work review has stayed flat or decreased in some cases from over the last five years as work reviews has increased, but time really hasn't changed. So the physicians are devoting to the services. And so that can be a really hard conversation when the physicians are experiencing this inflation, but their unit measurement of compensation is kind of staying the same.
SPEAKER_03:And then in terms of some of these issues you all mentioned, I've heard delays in reimbursement, reduced reimbursement, et cetera. Do you feel like that's specific to any unique set of provider type, rural versus urban, hospital, et cetera, or do you think really everyone in healthcare is experiencing these issues? I feel like all the healthcare practices that I've been hearing about are facing this. Recently, I know there are where bills passed, you know, on Medicare and Medicaid cuts, which are really going to impact the accessibility to healthcare, especially in rural areas and affect hospitals, you know, affect patient care. So I think that's something to think about in the longer term. But generally, I think with COVID, you know, physicians were putting in so much time and effort and really all other healthcare providers as well. And After the Advent of No Surprises Act and some other bills, I think they're seeing that payers are not willing to be in contract anymore with provider groups, hospitals, and as a result, they're having to provide these services, obviously, you know, to patients and they want to, but they're not seeing anything reciprocated back for the rendering of their services. And it's, you know, they're being, their claims are being denied for untimely filing or other reasons that just don't make any sense. And so I think it's becoming a broader and broader issue that has really expanded since COVID.
SPEAKER_04:Wow. Oh, I agree with what Payal said in that regard. I don't think it's unique to any one type of health care professional. I do think that, you know, with the increased pressure and financial pressure and costs that folks are experiencing, basically facing that they're coming up with strategies and methods to try to deal with these. And that can run the gamut as to whether it's closing a service line that's not producing the reimbursement level that you might expect, joint venturing with folks, involving in engagements with private equity and venture capital groups. There was, at least in West Virginia, there was a time period where we had a lot of, at least private equity was involved in some of the hospitals here. Now, most of them are nonprofits and we're seeing in other states that there are entities that are being purchased by venture capital companies. And so that's kind of, you're seeing another uptick in that approach. And so I think folks are just looking for avenues and ways to kind of deal with this financial uncertainty and the costs that they are facing, whether it's rural or urban.
UNKNOWN:Yeah.
SPEAKER_03:And just to piggyback on that, you mentioned a couple of potential solutions, private equity, joint ventures. What are some compliance pitfalls that these organizations that are exploring those solutions should be aware of?
SPEAKER_04:Yeah, so I think when you start getting into these types of arrangements, you have to make sure that your agreements are complying with fraud and abuse laws. You need to make sure that your antitrust risks, especially when you're talking about consolidating of health care systems, you need to make sure that you're following requirements with the Federal Trade Commission and the Department of Justice and that you're keeping them involved in the conversation, especially if you're triggering any of the reporting requirements under their purviews. you. As well in some of the private equity venture capital arrangements, especially where they're taking over different types of physician practices, you know, large physician practices or entities, you have to make sure that you're complying with corporate practice of medicine laws and don't run afoul of those. Also critical, which I know most folks on this call understand is making sure that your change of ownership forms are being filled out correctly, making sure that you're updating any requirements with Medicare and Medicaid to make sure that you do get reimbursed. When you do create these strategic alliances or consolidate for purposes of gaining the financial leverage for purposes of reimbursement.
SPEAKER_01:Katie, Paul, anything else to add on that? Yeah, I would just add, I agree with Alina, a lot of the same things, seeing some innovation and partnerships and the one that comes to mind is Ascension acquiring Amsurge, a big change in kind of their model from hospital operations to these outpatient sites, 250 sites that they're adding, trying to be competitive and see where healthcare is going and make sure that they have resources to serve those patients rather than just keeping them in the hospital. So seeing some changes in the market from hospitals and healthcare A lot of them are creating their own innovation centers, trying to create technology and solutions and that can be explored at scale so that they can manage some of these costs and financial pressures around staffing and other items with some technology and resources. And then also trying to bring a lot of things in-house where they might have outsourced different needs to various companies specialized in those areas, trying to figure out a way, can we do it internally? better and basically cut out that margin that, you know, these companies are keeping for profit and for all of their infrastructure. We've already got all this infrastructure. We've got all the providers. Can we make our own locums pod? Can we do different things? Now, obviously you have to have scale and size to do some of those things, but thinking about all those services that may have historically been provided like anesthesia or radiology or other items that were outsourced to groups, can you employ those or find ways to bring them in-house and manage that better and cut out some of that margin that you're paying and keep that for yourself. So I think kind of unique partnerships, unique investments, then kind of innovation centers and being incubators for new technology and ideas, a lot of systems, Intermountain, LifePoint, they all have those types of of organizations within their whole system. And then also thinking about what have you been paying someone else to do that you can maybe do better or at least cheaper without, with a lower margin, you know, or keeping that margin yourself.
SPEAKER_03:And Payal, I'd like to go back to you for a second. I know Awana and Katie mentioned some central solutions and also some compliance risk areas. How are organizations dealing with this, though, from a budgetary perspective? I mean, we just talked about all these constraints at the beginning of the call. How are they addressing these? Yeah, actually, my name is pronounced Pyle. Yeah. So, yeah, I think, you know, we're trying to ever think company is looking creatively, right? How are we trying to deal with these budget cuts or financial restraints? And I think Part of it is what Katie mentioned is looking at technology and AI to assist with a lot of these features, whether they be apps or making internal processes more efficient through the advent of different technologies or AI, using different new devices or products, services that are offered that can assist in making things more efficient and making things done more quickly but with a quality check that we don't have to outsource or that can be done in a better way with lesser internal resources. And I think all those are really helping to address that. But alongside that, you want to always make sure that you're not undermining or downplaying the compliance role that your company has. And so as a result of that, you're increasing your audits, you're increasing your policies, procedures, and the role of compliance and the legal team plays in ensuring that despite some of these financial restraints, you're doing more quality checks internally as a result of these new technologies. But I think in addition to both of those, I think, you know, physicians primarily, I think providers are really looking internally to see what else can we do to address the affordability and accessibility of care to patients when you know, the payment of services, but also the rendering services becomes limited as a result of the healthcare market and environment. And so I think, you know, telehealth and different outpatient clinics and different models of care are becoming also something that physicians are looking towards to really provide care to patients despite other financial restraints they might be seeing at hospitals or within provider groups. All right, so I'm going to shift to focusing a bit more on the strategies and solutions that we were talking about earlier. Can each of you share an example of a financial strategy or restructuring that helps an organization manage financial pressures while also remaining compliant with key regulation?
SPEAKER_04:Sure, I'll give a couple examples. And these may or may not be specific to just a particular organization, service offering within a facility. It might not be talking about an entire restructuring. But for example, a facility, hospital facility might do a revenue cycle optimization review and try to, you know, implement comprehensive revenue cycle management overhaul, invest in additional technology and billing mechanisms. Maybe even now you might see the use of some type of AI software or something else utilized for efficiencies and to maximize and improve billing, making sure you're getting your times, you know, your claims timely filed, also reducing denials. And also, at the same point, you wouldn't want to, if somebody was financially distressed, as Piles mentioned, you wouldn't want to reduce your investment in compliance or legal oversight because you don't want to increase potentially any issues with the False Claims Act. So you'd want to make sure that everything is compliant and that those are being billed consistently. But that's one way to kind of overhaul. Another way might be Thank you.
SPEAKER_03:Okay, how do you collaborate to balance business needs and compliance constraints when evaluating technology investments or infrastructure upgrades? Yeah, I think, you know, that's kind of a hard one, right? Because you obviously want to find vendors or new technology that can assist with, you know, upgrading your systems or making them better. But then you're balancing- Right, exactly. And I think that's where we're hitting that, right? You talked about inflation. We talked about the rising costs of healthcare. Well, at the same time, you really don't want to spend that extra money on these new features, but how do you balance that with the fact that, will this help you become more compliant? Will this help you stand out? you know, as a company organization, as a physician group, from others going forward. So it's sometimes taking risks too of adopting new technologies or new services or, you know, devices and products, but balancing that with, well, how much risk do we want to take? What internal processes do we have in place to do a quality check, to audit this, to review this? And then, you know, just ensuring that I think when you're collaborating with different vendors that you are ensuring you've taken the due diligence to do good research on the privacy and any data related concerns that you may have, because that's a big safety risk as well presently. And I think when you do all that internally with your compliance, legal, finance, InfoSec teams, I think you're better set to still move forward with these new technologies or new vendors. hopefully with a more successful, efficient pathway forward. I
SPEAKER_01:was just going to say my firm has a cybersecurity arm in our advisory group and they do high trust certification. So there's different programs and certifications that you can determine whether if vendors meet these requirements that they may be good candidates. And so you have to do maybe less assessment of them on the front end because they have this stamp of approval or they've gone through this process. But it is a very intensive, long process. And so some of these new innovative technologies that Payal is talking about may not have gone through that process yet and or be willing to take the time or the cost as they are being innovative and new. And there might be more of a lift on the organization organization side, but that would be one way to maybe expedite implementation if they have already achieved certain certifications and set that up through your vendor risk management program on the front end so that you can quickly assess new technologies and implement them, but know that they will be compliant based on meeting certain gates and policies and procedures up front. We've also been helping a lot of clients develop AI policies and procedures and look at how they're going to assess AI technology and implement it and start to use it and evaluate vendors and technology as AI becomes more, as it becomes adopted more.
SPEAKER_03:Perfect. So I have a question related to financial pressure and regulatory compliance. I originally earmarked this for Alana, but I do have a question, Katie, specific to physician compensation. I feel like this regulatory compliance comes up a lot with financial pressure where you always have providers perhaps concerned with getting additional compensation, but there's governance in place that keeps that compensation at a certain level. How do you advise clients when they're tackling that every single day on the provider compensation side?
SPEAKER_01:Yeah, you know, I talked about this a little bit, you know, but with Michaela and trying to think about kind of some newer innovative ways to provide additional compensation, but to receive something more for that. And so I am seeing a lot of clients starting to to utilize value based services. enterprise arrangements and for value-based purposes with value-based activities and starting to use those exceptions and safe harbors more to create strategic alignment and financial alignment, but around either things like service line development and program building or more outcomes-based specific arrangements with specific benchmarks and requirements to achieve those. So the organization's receiving improved quality, which is better for patients and likely better from a financial standpoint because a lot of the financials are tied to outcomes and or looking at alternative payment models and participating to receive if they have improved quality to receive super shared savings or other opportunities for incentive payments from payers. If you can demonstrate that you're best in the market at certain things, there's a lot of money to be made out there through arrangements with payers. But then to your point, evaluating those models and even just administratively processing them and paying them can be really challenging. You have to make sure you have all of the right data and processes in place to even measure quality and report that out and then track and pay the providers. And so that's where the compliance can be really key when you create those arrangements. And then also even just your payer contract arrangements. You've seen one, you've seen one. And how you get paid and it's two years later can be really complex to understand if it's financially viable to enter into those and what entering into those mean. We're actually doing, to Elena's point, a kind of revenue cycle optimization project around value-based care contracts and how they process those and get paid and model out the likelihood of payment and get better at really getting their arms around these contracts and the financial implications of that from a modeling and long-term perspective.
SPEAKER_03:Helena, I know Kay just mentioned it, but could you talk a little bit from a legal perspective, how you keep your clients to make sure that they stay ahead of these financial pressures, but also keep an eye on the legal risks as well?
SPEAKER_04:Sure. I mean, I think we've kind of all are saying, kind of speaking the same language here, right? You got to keep your folks informed. So I think there's transparency, right? To the point that you can, you know, keep your staff, your employees, your board involved in these that, you know, we are having financial difficulties. We are looking for new and innovative ways to increase reimbursement and giving all the different things that are being considered. And, you know, Katie's hitting the nail on the head and talking about these physician compensation arrangements Thank you so much. participating within. I do think, you know, and I know that folks may be aware of this case, there's a Boeing case out there that talks about mission critical information. And I think it's just making sure that your compliance folks at the board level, your finance folks at the board level are being, you know, educated and receiving the mission critical information that's necessary for them to help make these decisions. And you're going to want to make them in the compliant manner that we're recommending because there is personal liability that could be attached to the executives and the board if things are recklessly decided or if there could be negligence involved in some of these things. And so you want to make sure that you're evaluating the situation and making these decisions with the critical information that's being provided and consistent with applicable regulations.
SPEAKER_03:Personal liability hits particularly, I think, home to the C-suite because we see so much of that in these cases. Many of them are actually going to prison for issues such as the ones we've been talking about, which is no place anyone wants to be. Pat, were you about to say something? Yeah, I was just going to add, I think just from an in-house perspective, I think to your point, Elena, having a good governance structure and different boards or work groups that align and help get that information across the organization to the right folks and the right decision makers is really crucial, right? Ensuring that that... that remains a compliant and informed process. That's for sure. So this is a question for all of you. What are the most common regulatory compliance breakdowns you've seen occur as an indirect or direct result of financial stress? If you can tie your perspective role into the answer if possible. I can go first. From an in-house perspective, I think You know, in general, I see some gaps sometimes where we don't always have the most updated or, you know, proper policies in place. and ensuring that we get that in order, the right policies, procedures, having it go through the right process through the work groups, the board of directors, and then ensuring this proper training to the various people involved, right? Whether that be the front staff at different physician's offices or internal in an organization to the different departments who are working on something, just ensuring they have an understanding of the process and the policies, procedures, or associated regulatory concerns I think is really helpful. And then along those lines, ensuring that there's a good audit or, you know, quality control process in place internally, I think is really crucial to, you know, ensuring that there's a well-informed audit process that takes place, whether, you know, quarterly or semi-annually, annually, whatever that may be for the process in place. And then, you know, that need be having external, you know, consultant or audit come in to help improve those processes and do a secondary audit or quality check, I think really helps. And, you know, sometimes compliance does get a little less attention or sometimes can get dropped, right? When there's financial concerns. So you're just making sure that that's at the top of mind. I'm really glad you mentioned training because I think that's so important. And then also regular repetitive training. twice a year, every year, because there's so much turnover in any aspect of healthcare. And before you know it, what you taught someone, they're left, they've left. Someone news come in and they don't know the policies and procedures you just referenced. I think training is such a big part of that. Elena, Katie, do you have anything else to add?
SPEAKER_04:Yeah, I was just going to say to both of your points, the compliance, the training, the continuing these things, even when you're in a financially stressful situation, but not skirting them under the rug. So if you identify something in that audit, even though I know you're thinking maybe I don't have the money to pay this back, work with regulators. That's where you engage the outside counsel. Open that conversation. Don't ignore it if you've identified something that does need to be cleaned up because that can limit your ability to enter in some of these innovative relationships and go forward with some type of joint venture or selling to a larger health system. That can create issues down the road. And also, I think to your point on training and the turnover that might be involved, especially if an institution is in a financially stressful situation, is if you have that person in billing that was getting all notices on X and they've left, it's better to kind of set up these default email addresses or a way for multiple folks to go in and check when things are received. Because I think that you also, things could fall through the cracks when folks might be coming and going within an organization.
UNKNOWN:Yeah.
SPEAKER_01:Yeah, in my thought, I just see people moving too quickly, meaning that they often don't get all the information or have the right information or take the time to analyze the information around the deal or the compensation or the physician arrangement or whatever it might be. So just getting into a very rushed situation, which to Payal's point and others, you know, may mean that they skip processes and or maybe don't follow certain policies, which take extra time when you're trying to get a deal done because it's needed. Or, you know, I had an example with a client the other day where they're trying to solve for what is maybe more an an operational issue by throwing money at it or making a change to the financial aspects of the deal. And when we got on the phone and talked to them, it turned out that Well, let's not actually increase this rate to attract people to this service. If they end up having to work the whole day, let's just pay them for a whole day, which you already have a rate for. So it was interesting because it was like they had a rate for if they got to leave and go home early and then everyone was complaining it wasn't enough because they were staying all day. Well, you already have a rate for staying all day. Just pay them that rate. Don't increase this. Maybe you'll get to go home early rate. and kind of operationally figuring out how to adjust the way you're doing something rather than just rushing to change the financial terms of a deal that may have long-term consequences and end up that you pay more because you're not tracking those shifts or the time that's being performed as well. So kind of pausing to talk about the why behind the situation and making sure you're taking the time to review the information, have good information and follow your, your policies and procedures.
SPEAKER_03:That was a great example, Katie. Elena, can you also give an example, obviously anonymous, for clients that may have suffered some real life consequences as a result of rushing into decisions, financial decisions because of and not worrying about compliance risk?
SPEAKER_04:Yeah, I think, I mean, kind of just to piggyback on that, I guess if you, you know, you enter into this relationship because you're rushed from a financial perspective, right? They don't kick the tires, you know, whether it's the selling or the buying entity, you're not kicking the tires. You're not seeing, doing the due diligence. You're not identifying the key issues that you have to address in any type of arrangement that's being entered into. And then you get, you know, a year or two years down the road. Well, who's responsible for X, Y, or Z because we didn't identify it in the document So I do think there's some examples where, you know, financial penalties are being assessed. You know, cybersecurity incidents may have occurred that weren't disclosed that creates, you know, long-term implications for the deal. I don't know if that's kind of what you were getting at. Okay.
SPEAKER_03:So I've got one final question for each of you to wrap up the podcast. What's one piece of advice you'd give healthcare leaders trying to navigate the intersection of financial constraint and regulatory
SPEAKER_04:compliance? Set the tone at the top, you know, be transparent, tell your people, you know, you want to do the right thing and just be honest about the financial struggle and not, you know, cut corners on the money that's involved in the compliance aspect and the legal aspect of making sure you're doing things right.
SPEAKER_03:Yeah, I would say document everything and have a robust compliance program in place, as Alina mentioned, the right policies, procedures in place to ensure that you're protected as an organization.
SPEAKER_01:Both of those are very good. Maybe the only thing I'd add is engage your experts internally or externally sooner in the process. I see a lot of executives make deals or have conversations and then come back to legal or come back to operations or outside counsel or to the valuation professional after some things already half baked or half done. And that can create a lot of challenges. Some people are smiling, like maybe they've been in that situation. So just bringing in your experts that you have access to internally and externally sooner to get some outside or internal guidance from multiple avenues.
SPEAKER_02:Great
SPEAKER_01:feedback. I think tone at the top and documentation are great as well.
SPEAKER_03:Document everything. Agree on that perspective. Thank you three so much for joining us on this podcast. Thank you and have a great afternoon.
SPEAKER_01:Thanks so much for having us, Kate. Thank
SPEAKER_03:you.
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