Meet Joel Hamme, President Elect of the American Health Lawyers Association
Compliance Today, a publication of the Health Care Compliance Association, May 2008
This Feature Interview, published in the May 2008 issue of Compliance Today, appears here with permission from the Health Care Compliance Association. Call 888/580-8373 with reprint requests.
Editor’s note: Gabriel L. Imperato, Esq, CHC, Managing Partner in the Fort Lauderdale office of Broad & Cassel and member of the HCCA Board of directors, conducted this interview with Joel Hamme in March 2008. Joel may be reached by telephone at 202/466-6550.
GI: Tell us about yourself, your background, and what brought you to your current position as a preeminent health lawyer and President Elect of the American Health Lawyers Association (AHLA).
JH: After graduating from the University of Pennsylvania Law School, I spent several rewarding years in two judicial clerkships. When I finished those, I began work at Pierson, Ball & Dowd (PB&D) — what was then (1975) a medium-sized Washington DC law firm that was just beginning to build a significant health care practice. So, I was fortunate, not only to be in on the ground floor of this emerging practice area, but also to work closely with many attorneys who were deeply committed to involvement in the AHLA as speakers, authors, and leaders. Five of my colleagues at PB&D and at my current firm, Powers Pyles Sutter & Verville, became Presidents of AHLA (or its predecessor, the National Health Lawyers Association)! That type of enthusiasm is infectious.
GI: Tell us about your practice and the kinds of issues and compliance situations that you typically encounter in the long-term care industry.
JH: Although three decades of legal practice and client needs have forced me to deal with lots of different types of health care questions, my primary focus has been on Medicare and Medicaid reimbursement issues for long-term care providers, particularly nursing homes, home health agencies, and specialty hospitals. In the compliance arena, reimbursement and quality-of-care issues have been most predominant.
GI: Quality of care and the medical necessity and reasonableness of health care services have been the basis for criminal and civil enforcement actions in the nursing home industry and lately, for other health care organizations. How did this develop and where do you see it going in the future?
JH: I believe these developments occurred because some governmental prosecutors and consumers did not feel that state and federal agencies involved in the survey, certification, and reimbursement processes were doing an adequate job of monitoring health care providers in these areas and, as a consequence, sub-par or unnecessary care resulted. My suspicion is that these theories will continue to be used and refined unless or until the courts limit their usage. Obviously, there are now other new developments, such as the 27 Medicare “never events” for which no reimbursement will be made. Whether, and if so how, those developments will affect other enforcement actions or theories remains to be seen.
GI: Do you believe it is appropriate for the government or qui tam relators to utilize criminal enforcement statutes and/or the United States False Claims Act to challenge the quality of care and the medical necessity and reasonableness of health care services? If so, under what circumstances?
JH: Personally, I have always had my doubts about these legal theories. Some of that is probably a function of having represented providers and realizing that many quality-of-care and medical necessity decisions are less than clear-cut. Part of it, however, is that these are “slippery slope” cases of the most extreme form. Nonetheless, I have to tip my hat to those who developed these novel legal theories and then selected the cases that were the most factually appealing and most likely to result in courts validating them. Having said that, I will salute the intellectual honesty and integrity of those attorneys who extend these same theories to the next level by suing the governmental agencies that received public monies and then did a poor job of enforcing certification standards and medical necessity criteria. I’m not sure whether or when this will occur, though.
GI: What do you think are the most pressing and/or unique compliance challenges facing the long-term care industry?
JH: The biggest challenge is providing high quality care in an environment where adequate funding is often fi ckle, or worse, due to the need to balance governmental budgets and cut governmental expenditures.
GI: What advice would you give to someone just starting out in the compliance arena, who would be responsible for implementing a compliance program in the long-term care industry?
JH: Research and review the pertinent literature carefully. Talk with attorney colleagues who have worked in that area. And, seek out providers that have been through the process. Associations like AHLA and HCCA afford their members the educational materials and networking opportunities to do all three.
GI: I understand that you recently participated in the OIG/HCCA Government Industry Roundtable called “Driving for Quality and Long-Term Care: A Board of Directors Dashboard.” What can you share with us about what was discussed at this government/industry conference?
JH: I thought that the fall 2007 publication of “Corporate Responsibility and Healthcare Quality: A Resource for Healthcare Boards of Directors,” a joint effort of AHLA and the OIG, was a very good initial step in grappling with these issues. So, I was delighted that the OIG and HCCA took this additional step in December 2007 by convening an experienced work group of individuals with diverse perspectives to discuss quality, commitment processes for monitoring and improving quality of care, outcome measures, and challenges and opportunities in creating a quality-of-care dashboard. Although there is a legitimate need, at this early stage, to avoid erecting any specific set of criteria as the definitive industry standards in these endeavors, it was also reassuring to see many health care clients and long-time colleagues at the Roundtable, including Lew Morris, Deputy Inspector General and Chief Counsel in the OIG (who also worked at PB&D).
GI: The Annual Fraud and Compliance Forum, which is co-sponsored by the American Health Lawyers Association and the Health Care Compliance Association, has been a successful joint venture arrangement between the two associations. Do you agree? Do you see areas for improvement and/or more collaboration between the two organizations?
JH: The Fraud and Compliance Forum has been a successful conference for both HCCA and AHLA and a great educational resource for their members. Although the conference dipped in attendance for a year or so, I understand that it is back on track and experienced solid growth last year. Of course, one of the challenges for both associations in developing the conference each year is to recognize that the educational needs of compliance personnel and attorneys, who work in this area as in-house or outside counsel, are often somewhat different and that “one size does not fit all.” At the same time, such collaboration enables both associations to
furnish needed member benefits in a single forum, thereby avoiding replicating one another’s work.
GI: What degree of latitude and independence do you think a compliance professional should have in a health care business organization? Do you think it is ever appropriate for a compliance professional to report to General Counsel or the Legal department in a business organization?
JH: In general, I am skeptical of policies that are infl exible and rules that have no exceptions. Typically, it makes sense to have a health care entity’s General Counsel and Legal department operate separately from and independently of its compliance offi cials. At
the same time, there is also a need for some degree of collaboration and cooperation between the individuals who perform these differing functions. Health care entities that operate smoothly in the Compliance arena invariably recognize both sides of this equation.
GI: A recent complaint was filed in the Southern District of Florida under the False Claims Act against an individual who simultaneously acted as the General Counsel and compliance officer for a national health care organization. What do you think are the implications of this case for General Counsel to health care business organizations? What about for compliance professionals? Can one attorney wear both hats in a health care business organization? What are the implications for effective compliance?
JH: I have been blessed to know, work with, and learn from AHLA’s great staff and its wonderful volunteer leadership during much of my professional career. While the educational and networking benefits have been significant, the friendships and camaraderie have been even more meaningful to me.
AHLA’s priorities have been and, I hope, will continue to be:
- Increasing volunteer and leadership opportunities for all members who want them, and doing so in a way that encourages younger members and members of diversity to take advantage of these opportunities;
- Enlarging the benefits of AHLA’s basic membership package;
- Strengthening AHLA and its ability to serve members well through diligent financial stewardship; and
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Enhancing and fostering the transparency of AHLA’s operations to all interested members.
GI: HCCA is the largest organization of compliance professionals and the American Health Lawyers Association is the largest organization solely dedicated to the education of health lawyers in the country. What do you believe is the ideal type of relationship between a General Counsel and a compliance professional in a health care business organization?
JH: Regardless of how a formal organizational chart depicts that relationship, a healthy relationship between a General Counsel and a compliance professional requires a mutual understanding of their jobs and the differences between them, candor with one another, and sufficient trust that each will do his or her own job.
