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Compliance Today Editorial Board The following individuals make up the Compliance Today Editorial Advisory Board: Gabriel Imperato, JD, CHC CT Contributing Editor Managing Partner Broad and Cassel Eric Klavetter, JD, MS, MA Privacy and Compliance Officer Mayo Clinic Lisa Silveria, RN BSN Home Care Compliance Catholic Healthcare West Christine Bachrach, CHC Senior Vice President – Compliance Officer HealthSouth F. Lisa Murtha, JD, CHC Managing Director Huron Consulting Group Jeffrey Sinaiko President Sinaiko Healthcare Consulting, Inc. Bonnie-Lou Bennig Director of Corporate Compliance & Quality Improvement Vanguard Healthcare Services, LLC Deborah Randall, JD Partner Arent Fox LLP José A. Tabuena, JD, CFE, CHC VP Integrity and Compliance/ Corporate Secretary MedicalEdge Healthcare Group, Inc. Cynthia Boyd, MD, MBA Associate Vice President Chief Compliance Officer Rush University Medical Center Kirk Ruddell, CHC, MBA Compliance Officer Island Hospital Debbie Troklus, CHC, CCEP Assistant Vice President for Health Affairs/Compliance University of Louisville School of Medicine Becky Cornett, PhD, CHC Director, Fiscal Integrity Finance Administration The Ohio State University Medical Center James G. Sheehan, JD New York State Medicaid Inspector General Cheryl Wagonhurst, JD, CCEP Partner Foley & Lardner LLP David Hoffman, JD President David Hoffman & Associates October 2008 82 Health Care Compliance Association • 888-580-8373 • www.hcca-info.org
ASKLEADERSHIP John asks the leadership your questions Editor’s note: John Falcetano, CCEP, CHC-F, CHRC is Chief Audit/Compliance Officer for University Health Systems of Eastern Carolina and a long-time member of HCCA. This column has been created to give members the opportunity to submit their questions by e-mail to jfalcetano@suddenlink.net and have John contact members of HCCA leadership for their response. John Falcetano Question: What is the difference between attorney-client protection/privilege and attorney-client work product Does it make a difference if you get legal advice from in-house counsel or external counsel when you identify a potential compliance issue The answer was provided by Frank E. Sheeder III, JD, CCEP, Partner, Jones Day and member of the HCCA Board of Directors Both of these doctrines are long-standing ways to protect the confidentiality of communications between lawyers and clients, and the work that lawyers and their agents generate. The attorney-client privilege generally protects communications between a client and an attorney where the client is seeking, and the lawyer is providing, legal advice. The privilege dates back to Elizabethan times (the 1500s) and is designed to facilitate the candid exchange of facts, which should lead to better legal advice. If clients were not assured that the information they shared with their lawyers, and the ensuing discussions, were not confidential, this would have a chilling effect on the efficacy of the legal advice process. The attorney work product doctrine protects the confidentiality of an attorney’s thought processes, analyses, memoranda, notes, and the like. It is likewise designed to facilitate the rendition of legal advice. In the health care compliance realm, it is important to note that when attorneys engage consultants or experts to assist them in rendering legal advice, their work can be protected under the auspices of the work-product doctrine. It does not make any difference whether you get advice from an in-house lawyer or outside counsel when you identify a potential compliance issue. The important thing is for compliance professionals to recognize circumstances in which it is prudent to seek legal advice. n Health Care Compliance Association • 888-580-8373 • www.hcca-info.org 83 October 2008
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Volume Ten Number Ten October 2008
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INSIDE Publisher: Health Care Compl
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which ensures that the understandin
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Table 1: 14 CLAS Standards U.S. Dep
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Scholarship Recipients The Four Dua
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and need emergency care (e.g., an i
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Court analyzes first case under Sta
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It was established in 1969 in respo
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and get linked up with e-newsletter
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Social networking Many compliance p
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Focus on Organizational Compliance
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Medicare’s medical necessity crit
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Is no notice enough notice Legal pr
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Exploring the question: Does this r
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“Does this really make a complian
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