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Can you distinguish the difference between Legal and Compliance, or do you perceive them as interchangeable roles? Understanding the difference is crucial to leveraging both effectively, saving costs, and increasing efficiency in achieving compliance for your business.
Overview
Legal and compliance often work together to help businesses achieve compliance. Legal counsel generally advises on what laws and rules your practice is required to comply with, and compliance guides your practice on how to achieve compliance with those laws and rules. Legal conducts research and provides expert advice to ensure the correct interpretation is applied, and compliance addresses the requirements by implementing, operationalizing, and monitoring adherence to the requirements. Although the two work together, and both are essential to achieving compliance, the Department of Justice (DOJ), Office of Inspector General (OIG) General Compliance Program Guidance sets forth the expectation that Legal and Compliance be separate functions within a heatlhcare organization. The guidance also highlights the importance of the working relationship between compliance, legal, and other functional areas. Finally, the guidance reenforces the responsibility of the compliance officer (or compliance contact in smaller organizations) by stating that the compliance officer (or contact) should remain involved in all health care compliance investigations in which counsel takes the lead. (OIG 2023)
The role of Legal
Legal counsel are the experts who confirm the applicable scope of requirements that apply to a healthcare practice, and can also provide answers to specific questions about those requirements to eliminate ambiguity and confirm understanding. Legal conducts research from various sources, including state and federal law, and case law, to appropriately advise clients. Legal counsel represents and defends its clients in substantial legal violations, litigation, and lawsuits, and drafts business contracts and other legal documents, when needed. Legal and Compliance tend to have niche areas of practice and this is important to keep in mind when selecting an attorney or compliance professional to support your needs.
The role of Compliance
The role of Compliance is to leverage the applicable legal requirements, as determined by legal counsel, to prevent, detect and correct non-compliances. Compliance will identify and respond to risks, develop policies and procedures, and scope the compliance plan in accordance with the regulatory landscape determined by Legal. Compliance partners with operations to ensure adherence to the applicable rules. A compliance professional may lead implementation efforts on new requirements, audit against existing requirements to assess and improve compliance status, assist with demonstrating compliance to regulatory authorities, and investigate and correct non-compliances. In the event there are compliance deficiencies, a compliance professional will conduct a gap analysis to analyze current state, future target state, and the required steps to achieve the target.
Key differences
Generally, a licensed attorney will cost more to retain than a compliance professional. When navigating legal requirements, a healthcare practice should consider the circumstances to determine whether they need legal counsel or compliance support. If a practice is at risk of litigation or a lawsuit, it would be most appropriate to retain an attorney for support. If a practice is working towards compliance with relevant requirements, proactively or reactively, it would be most appropriate and cost-effective for a practice to retain a compliance professional. In the event your compliance professional requires legal support and advice to help your practice achieve compliance, the compliance professional can support efficiency and cost-savings by drafting concise and specific legal questions that will reduce an attorney's billable hours and streamline the process of getting legal advice.
Often, compliance professionals have law degrees or history working as licensed attorneys which can cause complexity in ensuring adherence to the OIG's program guidance. Many compliance job descriptions prefer or require law degrees. In this case, it is recommended that the compliance professionals' scope of responsibility be limited to compliance functions, even if they are qualified to provide legal advice. A legal background can be a valuable asset for a compliance professional, but individuals in these situations must still partner with the designated legal counsel for advice that is outside the scope of the compliance functions.
Conclusion
When you're faced with a regulatory challenge, consider whether the concern is in relation to what the requirements are (Legal) or how to comply with the requirements (Compliance). Also consider the nature of the concern at hand; significant regulatory violations, litigation and lawsuits are appropriate to be handled by Legal, while audit findings and other medium to low risk violations are appropriate for a qualified compliance professional.
Office of Inspector General (OIG). (2023, November). General Compliance Program Guidance (GCPG). https://oig.hhs.gov/compliance/general-compliance-program-guidance/
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