This week, I am running a special five-part podcast series, Monitoring in Healthcare. In it, I take a deep dive into healthcare monitoring and how the pro-active use of a healthcare monitor can positively impact all stakeholders in the healthcare industry. The series is sponsored by Affiliated Monitors, Inc. One of the lessons that I learned in researching and producing the series is that while healthcare monitoring has its own unique challenges, there are many techniques, strategies and tools which have wider application to commercial and financial entities. Even if you are not in healthcare, checking out the series could provide you with some new innovative approaches and best practices for the enhancement of your corporate compliance program.

In the healthcare space, when someone makes a complaint to a licensing board, the complaint is investigated, and the licensing board finds, among other things, that the practitioner’s patient records lack basic elements: for example, adequate notes about treatments. Most of these licensing boards have regulations that say what minimally should be included in patient records. And this is the standard you would hope that any kind of a medical provider is recording in writing. This is critical  for a patient’s medical care going forward. A monitor can be an excellent option as for the healthcare provider to continue to practice while providing prompt feedback to the agency about whether the healthcare provider is making promised changes. This is because a straight suspension may hit the pocketbook without helping the provider make meaningful change. An equal if not greater benefit to the healthcare provider as that the monitor can provide tailored advice about how to bring the practice up to professional standards.

In the opioid crisis, a monitor to track prescriptions and prescribers of opioids and other drugs,  as part of a multi-pronged approach to the opioid abuse issue. A monitor can help a provider to put policies and procedures in place to (a) assess the underlying need for pain medication; (b) determine whether someone is actually taking the medications; (c) refer to other specialists for supplemental care: physical therapy, acupuncture, pain clinics; and (d) appropriately terminate care of patients who appear to be getting prescriptions primarily to re-sell the pills.

Yet the benefits do not end there as monitoring, as part of settlement agreement, could require the provider to reduce the number of pain patients and the quantity of pills prescribed over a certain period. A monitor can keep the regulators informed as most state agencies do not have the staff available to track compliance with the details of such an agreement. Independent monitoring is paid for by the licensee. Such use of a monitor also works to protect the public by bringing the professional in line with national standards for assessment, treatment and follow-up of pain patients. Finally, using a monitor can allow the provider to remain open and demonstrate their commitment to improved practice. Healthcare providers are quick learners and, in some cases, putting a structured program in place is a relief.

Another scenario from the healthcare industry where employing a monitor can inform a corporate compliance program is around hospital conversions. Many states have laws in place to protect the public’s interest when a not-for-profit hospital is sold to a for-profit entity. The state’s Attorney General or Department of Health may impose conditions on the new entity, in some cases to prevent it from simply flipping the hospital and extracting the dollar value of the goodwill that was invested by the state when it was not-for-profit.

Hospitals started by charitable or religious organizations may have been acquired or approached by for-profit entities who might be interested in acquiring them. States are concerned that they simply want these healthcare institutions snapped up, so the states want to make sure that the interest of the public are really protected. There are multiple interests that the public has when a not-for-profit entity is bought by a for-profit entity; including things like making sure that the for-profit entity will exist as a healthcare provider for a reasonable period of time, they are good neighbors, that they pay taxes and if there were charities that were in place, those charities continue.

When such a conversion occurs, the purchaser may agree to a wide variety of conditions, such maintaining certain services, making capital improvements, expanding in certain areas, meeting certain public health standards (for immunizations, treatment standards, coordination of care) and addressing certain public health priorities, such as opioid overdose risks or area-specific issues like Lyme disease. An monitor may engage in some or all of the following: review of money to be sure it is spent according to conditions; review of policies, procedures, contracts, training materials; review of assignment of assets,  e.g. donations that were earmarked for a purpose that is no longer possible; visits to the hospital to see if certain programs are functioning, to see if services are being offered as agreed-upon; interviews with staff to see how medical requirements are being met; and review of charts to see whether processes are being followed. In short there are wide variety of conditions which be in place or which the state or regulators want visibility into and a monitor can provide that visibility.

A monitor can also consider other factors, which may seem to less healthcare related but could impact a conversion. There might be an agreement for capital improvements, for example, there might be total dollar amounts to be invested, dollar amounts per year or there might be dollar amounts over a span of time. It could all depend on what the long-term plans are for the acquirer. As an acquirer typically does not make a lot of capital improvements in the first year, a regulator would need a monitor in place for some period of time to make sure the investments are made and  the money spent is actually going on capital improvements. There could be ancillary agreements such as participation in and sponsoring of community activities or education, all of which need to be monitored.

A monitor can drill down into whether the healthcare provider put out advertisements about those kinds of things and see if the public and the person or persons involved actually attended them. Another area often seen is around charitable assets, where a donor may have made a bequeath to a hospital for a specific purpose. If the specific purpose is no longer available; for instance, if it was for a hospital wing that is getting closed down and not being used for the kind of care that it was set up for, those assets might be reassigned.

These examples from healthcare clearly demonstrate how using an independent monitor can facilitate not only compliance with regulations and regulatory issues but with a much wider variety of scenarios. The hospital conversion example clearly informs any merger and acquisition situation or even a business expansion. As a compliance professional, you are only limited by your imagination. By using imagination and innovation, you can tackle many issues more efficiently, with a lower overall cost and in a manner,  which should satisfy a wide variety of stakeholders; from the government to your Board of Directors to shareholders and most significantly to your company’s bottom line.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2018

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