Last week, I had the honor of participating in a panel discussion about how health care entities deal with reported compliance concerns at the ABA’s 16th Annual Conference on Emerging Issues in Healthcare Law. The panel was made up of experienced health care attorneys with broad and long-standing health care experience: Richard Westling, current First Assistant U.S. Attorney in the Eastern District of Louisiana; Lesley Ann Skillen, an experienced relator/whistleblower attorney with Getnick & Getnick LLP; Gabriel Imperato, a long-time health care defense attorney at Broad & Cassel; and me.
It became clear during our panel preparation sessions that we could have talked for hours. Richard, Gabe and I each have been on both sides of the equation: government and defense. Lesley has worked with potential qui tam whistleblowers for years. We all concurred that the advent of false claims acts, and resulting qui tam filings, has radically changed the compliance landscape: what may in the past have been perceived as a Medicare or Medicaid administrative issue could well be the subject of a qui tam and subject a company to civil or criminal investigation at a state and/or federal level. The question is not whether a company has a compliance plan, it is how the company actually addresses a compliance issue when that issue is first raised internally that may dictate how the matter is ultimately viewed and treated by government enforcers.
In advance of the panel, Lauren Moldawer and I authored a paper entitled Corporate Grief: The Six Stages of Coping with a Reported Compliance Problem. In my experience, many health care entities deal with a reported compliance problem in stages that mirror the stages of grief:
- Denial: We didn’t do that
- Disavowal: We didn’t understand; the rules are vague
- Disclaimer: The government said it was ok
- Deflection: Everyone else does it
- Blame: It was X’s fault
- Bargaining/Acceptance: Ok, but can we just deal with the future, not the past?
Our paper contains ideas for working through each of those six stages as well as recommendations for fostering a “culture of compliance” in dealing with reported compliance concerns. Our recommendations won’t eliminate the possibility that a qui tam will be filed based upon a reported compliance concern, but based upon input from my co-panelists I believe they may reduce the odds.