When is the Work Product Privileged?

I am indebted to Ronald Hirsch, M.D., who called my attention to an article that recommends that when an organization’s medical records are audited, the entity should ask its counsel to engage another auditor to conduct a parallel review. 

The article asserts that your auditor’s findings will then be protected by the attorney-client privilege. While there is a great deal of truth to the article, it misses an important nuance. First, let’s address some key semantics.

When a lawyer engages a consultant to assist the lawyer, it isn’t the attorney-client privilege that protects the information, it is the attorney work- product doctrine.  The distinction is important because the attorney work-product protection is narrower than attorney-client privilege. With very limited exceptions, when you consult with an attorney, that consultation is protected. (The most common exception is that failing to protect the confidentiality of the advice waives the attorney-client privilege. 

For example, asking a lawyer a question in front of others who do not “need to know” the information will destroy the protection, as will sharing the attorney’s advice with others. The work-product privilege is much narrower and only applies to work done in anticipation of litigation. When you are being audited, it is reasonable to conclude that there is an anticipation of litigation, making it likely that the work-product privilege will apply.   

Understanding the distinction between attorney-client and work-product privileges is important, however, because when you conduct your own routine reviews that aren’t in anticipation of litigation, there’s a high likelihood the review doesn’t have any legal protection.

The real disagreement I have with the author of the article, however, is that I recommend waiting for the results of an outside audit before having your expert begin work.  If the outside consultant concludes that any charts have been overpaid, the fact that the review is protected by a work-product privilege probably does not prevent application of the 60-day rule.   If the outside auditor takes more than 60 days to complete the work, you may find yourself in a position where you’ve voluntarily refunded money based on your hired consultant’s conclusion only to have whoever is auditing you conclude the claim was properly paid. 

The bottom line is the article is right that IF you engage an outside consultant to review charts during an audit, it is best to engage them through counsel.  But instead of doing that review while you wait for the outside auditor, I would recommend engaging the outside consultant and having them ready to start work the moment you get the review results and not before you get them. 

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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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