Consideration of Consultation

Hiring a consultant can be a high-risk activity. 

Don’t get me wrong; I am definitely not disparaging consultants in general. A good consultant can get you out of a jam. I regularly rely on the wisdom of consultants, including my fellow RACmonitor authors and Monitor Mondays panelists, while assisting clients. But as much as you can be helped by a good consultant, a bad one can cause you to be drawn into a case, or even lose one. 

Let me describe one of the more surreal moments of my life. A colleague and I were having lunch with a consultant who had joined a regional accounting firm. She was telling war stories to impress us. She explained that when she worked with a Medicare contractor, she was paired with an Office of Inspector General (OIG) agent investing a clinic that was owned by a physician who was born in India. 

At one point, she shook her head and muttered, “he’s Indian, everyone knows all Indians commit fraud.” 

After my colleague and I made sure we had not broken our jaws on the table as our mouths opened in astonishment, we sought to confirm we hadn’t misheard. She stood by her racist remark, adding that she was scared that this physician would kill her, so she and the OIG agent checked into a hotel under an assumed name and then went and stayed someplace else. Think about that for a moment: if her plan was to stay someplace else, she should have used her actual name at the first hotel, right? This consultant wasn’t just prejudiced; she was also incompetent.

At the time, I had about a dozen clients being audited by the Medicare contractor for whom this consultant had worked. Nearly all of my clients were Indian. Suddenly, everything came into clear focus. The contractor had been systematically auditing Indian physicians. 

Ignoring for the moment what I think was terrible behavior by this contractor (including the fact that two oncologists had been reviewed, one born in India, one in the U.S., and the contractor told the physician from India that Zofran should rarely be used while telling the American-born physician to use Zofran whenever he thought it was appropriate), let’s return to the consultant.

To this day, she is still out there plying her wares. You could hire her. Her bio notes how often she has testified and been deposed, but it does not say “I am a complete racist” or “I judge people on stereotypes without actual information.” 

So, how would you know not to hire her? I do not have a perfect answer. I can only offer a few suggestions. First, ask around. Check with multiple references. Make sure those discussions are thorough. Ask “was there anything that concerned you about him/her? Did anyone in the organization raise any concerns about the consultant? How did he or she communicate? Were they open to feedback?”

Interview potential consultants. Get them talking. Ask what trends they notice in reviews, and ask for concrete examples of how they have approached particularly complicated potential overpayments. Ask them to describe some situations where they were troubled by a client’s practice, and how they handled that issue. Ask what they do when a client dislikes their advice. 

Determine if they view their role as an enforcer or a defender. Consider which approach you prefer: do you want them to resolve ambiguity in favor of the government’s position, or in favor of you? Or perhaps you want an expert who presents BOTH positions, and lets you pick the approach you prefer. 

I cannot promise that the diligence will help you avoid hiring a bad expert, but at least your odds will improve.

Program Note:

Listen to David Glaser every Monday on Monitor Mondays, 10-10:30 a.m. EDT.



David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron's Health Law Group. David assists clinics, hospitals, and other health care entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David's goal is to explain the government's enforcement position, and to analyze whether this position is supported by the law or represents government overreaching. David is a member of the RACmonitor editorial board and is a popular guest on Monitor Mondays.

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