Contracts help prevent legal, regulatory issues
Consultants should focus on contract specifics
HIM consultants often have informal relationships and agreements with health care facilities. While these usually work out fine, there always is the possibility of a lawsuit or regulatory problem.
To prevent potential problems, the best policy is to have a contract in writing that outlines the consultant’s specific duties and performance goals, says Marie C. Infante, JD, MS, MBA, RN, senior counsel for Mintz, Levin, Cohn, Ferris, Glovsky & Popeo in Washington, DC.
A report by the Office of Inspector General (OIG) last year discussed consultant liability with regard to upcoding and gaming issues, and this is another reason that a consultant’s contract should be detailed in writing.
"Hiring a consultant does not relieve a facility of the ultimate responsibility as far as compliance with regulations, but at the same time, the OIG may be looking at the consultant," Infante says. "And unless specific performance expectations are written into agreements as far as results, etc., you’re at risk of having a dissatisfied customer."
Infante offers these suggestions for how HIM consultants can best manage their contractual relationships with health care organizations:
• Agree on assigned services.
What often happens is that a consultant and a health care organization have different ideas about what the consultant will do, and this can lead to misunderstandings and a soured relationship. A contract that outlines both parties’ expectations can prevent this problem.
"One thing consultants should be doing in terms of managing relationships with clients is to make sure both parties agree to assigned services," Infante says.
These services will be specific to the individual consultant, but may include record reviewing, monitoring, or making recommendations for documentation improvements.
"An administrator may think you’re doing something, and you’re not doing it, or you’re spending a lot of time on something they don’t want you to be doing at all," she says.
• Set performance expectations.
Whenever a person is working independently without a supervisor, there are questions about performance that need to be answered on both sides.
For example, the contractor will need to know when he or she will have access to records and whether there will be any obstructions to that access, Infante says.
Likewise, the health care organization may have certain performance expectations that are desired and others that are absolutely necessary, and these should be put into writing.
"Expectations can clearly define what you need to spend as far as time is concerned on the project," Infante says.
For instance, if the health care organization wants the consultant to conduct a 100% chart review of every reimbursement claim received within a certain period of time, then the contract should reflect how many hours per week that task would likely involve.
"Whatever the performance expectation is, you need explicit terms and conditions in the agreement and a clear understanding of what both parties are going to do," she says.
• Infuse accountability.
The contract should spell out state and federal standards and regulations, as well as the standards of the particular health care organization. This way, the consultant will know precisely what his or her legal and regulatory requirements are.
Likewise, it should be understood in the contract that the consultant will meet all regulatory standards because the facility will want to hold the consultant responsible.
While it’s unlikely that a health care organization will sue a consultant for poor performance, nobody wants a disgruntled client, which is why it’s best to have some accountability written into the contract.
"The facility wants to hold the consultant responsible and know what they’re paying for, and the contract is a way to infuse accountability," Infante says.
• Outline payment agreements.
The contract also should spell out the terms and frequency of payment, as well as what kinds of invoices will be provided and what kinds of deliverables the health care organization will receive, Infante explains.
All of these factors can be written into a contract without the assistance of an attorney, although some consultants and health care organizations may prefer to have legal advice.
"It can be a memorandum of understanding, something put into writing so that everyone says, this is what we’re going to do and what we agree with,’" Infante says. "This is one simple step to committing things to writing so you have a clear understanding of the expectations on both sides."
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