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A More Focused Agenda for the Board’s Conflict-of-Interest Committee
The committee with responsibility for conflicts of interest should closely reconsider the scope and intensity of its efforts, in response to rapid industry change and increased regulatory enforcement. In this article, Michael W. Peregrine provides areas for consideration as the committee works to ensure that its disclosure and review process reflect the hospital/health system of 2015.
By Michael W. Peregrine, McDermott Will & Emery LLP
The board committee with responsibility for conflicts of interest should closely reconsider the scope and intensity of its efforts, in response to rapid industry change and increased regulatory enforcement. The attentive board member is familiar with the evolution of the industry, the factors prompting that evolution, and the operational, financial, and legal compliance implications arising from that evolution. But that evolution has also led to new types of ventures, investments, and other relationships that can have profound conflict-of-interest implications. And the attentive board member may be less familiar with those new kinds of relationships, and how they affect the board’s existing conflicts process. Hence, there is value in revisiting that process to ensure that it is responsive to the current environment.
What are we talking about here? Mostly, the broad and diverse portfolio of businesses, enterprises, complex partnerships with clinicians and other providers, technology investments, and quality of care commitments in which most healthcare systems are participating. We’re also talking about a new generation of vendors and suppliers entering the market to support hospitals and health systems in the management of their newly diversified portfolios. And we’re talking about new levels and forms of financial and legal risk arising from those diversified initiatives. The fundamental question to the conflict-of-interest committee is whether its disclosure and review process reflects more the health system of 2005 (or older) than it does the health system of 2015.
Conflict-of-Interest Committee Considerations
As the conflicts committee takes time to reconsider its work and responsibilities, it should focus on the following factors, among others.
What’s new. The committee needs to “buy into the concept” that industry change has created the potential for different conflict dynamics. That might not be hard to do. First, ask when the last time the conflict-of-interest policy itself, or the disclosure questionnaire, was revised. How has the organizational and financial size of the hospital or health system changed in that period? Then ask when the last time was that the various boards and committees received meaningful duty of loyalty education. Move on to comparing the organization chart of today, with its various interests, partnerships, and investments, with those of 10—or even five—years ago. Also check out a list of the organization’s current major vendors and compare that to prior years. What changes have occurred in the services the hospital or health system is purchasing, the vendors it is contracting with, and in the types of organizations with which it is partnering or in which it is investing? Chances are this kind of exercise might open some eyes amongst committee members.
What’s not new. The industry may have changed, but the duty of loyalty has not. The expectation of board members is that they will not actively seek out relationships that create the potential for conflict of interest, they will fully disclose those arrangements to the board, and the board will conduct a thorough, disinterested review of such disclosure, and board members will abide by the board’s decision as to whether a conflict arises, and the implications of that conflict.
The “so what?” question. The law has historically taken a strict view of duty of loyalty concerns since they go to the core of board service. There’s the question of the underlying circumstances; the possibility that directors of sophisticated non-profit health systems will be held to a higher fiduciary standard than directors of small, community-based institutions. And there’s the risk associated with allegations of conflicts of interest—not only do they create the potential for voidable contractual relationships, but they also serve as a “red flag” to media and the regulators investigating the propriety of board conduct in connection with controversial business transactions or in circumstances of financial distress. So there is a lot at stake.
An inward look. Early on in the review process there should be a review of the basic approach by which the board addresses conflicts. Is it a matter for full board review, or through delegation to the conflicts committee? If the full board has reserved that power to itself, how is that working? Is it an efficient and effective process? If it is the responsibility of a committee, what is the extent to which the board’s powers have been delegated to the committee? What is the composition of the committee, the independence of its members, the frequency with which it meets, and the manner by which it reports to the full board? Do particular competencies need to be reflected in the committee membership? All of this is basic “blocking and tackling” stuff—but important nevertheless. It’s tough to address current challenges through an antiquated process.
What to disclose. Most conflict-of-interest policies require disclosure of business arrangements, investments, and employment relationships—all usually centered on financial connections, and all usually pretty poorly defined. The question will be whether those existing definitions will be sufficient to “cast the disclosure net” as broadly as possible. The expectation is that the disclosure process will prompt board members to think in the broadest possible context about what should be disclosed (i.e., looking “down the block, around the corner, and down the next block” when it comes to identifying relationships that could potentially create the appearance of bias or conflict). An effective conflicts process is one that provides interested parties with clear, fundamental direction on the kinds of relationships to be disclosed. That direction must reflect a full awareness by the committee of the types of financial, personal, and other relationships the board members are likely to have in a diversified health system.
The quality of disclosure. The greatest personal risk to an individual director arises from failure to make adequate disclosure of a potential conflict of interest. Typically, the problem arises less from the actual failure to disclosure and more from a superficial disclosure that provides the committee with little information from which a decision can be made. Have the committee members cull through a cross section of director disclosure questionnaires. Note not only those disclosures on which no disclosure is made, but also on which the disclosure of fairly significant issues are made in the context of a sentence or two. In the current environment, the conflicts committee has the opportunity to provide board members with a comprehensive yet easy-to-complete questionnaire form, as well as with an expectation that disclosures must be sufficiently detailed if they are to be accepted as complete. The committee must have no tolerance for superficiality and incompleteness. The general counsel can be particularly helpful in advising on the sufficiency of individual disclosure.
Appearance counts. At the risk of increasing its workload, the disclosure process must focus on relationships that create the appearance (not just the reality) of conflicts. Conflicts committees must address a broad array of legal and reputational considerations in their review process. A relationship does not have to give rise to an actual conflict of interest in order to involve conflict committee review. The committee must be concerned with a relationship that creates merely the appearance of a conflict (i.e., the risk to the organization can arise from a third party’s perception of a relationship and whether it appears to create a conflict) because that perception may be enough to prompt a negative media story, a regulatory review, or litigation to void a contract—or worse. This is particularly the case with respect to unique relationships arising from a health system’s new and diversified investment or collaboration portfolio.
Evaluation criteria. Personal risk to directors can also arise under the duty of care from an inadequate conflicts review process; i.e., where the review applied by the conflicts committee or the full board was insufficient to address the potential significance of the disclosed relationship. The conflicts committee can reduce its exposure to such risk through the consistent application of formal, written evaluation criteria to its review of each disclosed relationship. No “seat of the pants” or “we’ll make it up as we go along” approach. The law will expect a conflict-of-interest review process to incorporate a level of diligence and care that is commensurate with the complexity of issues brought before it. A standard set of evaluation criteria, supplemented as may be necessary by additional questions related to the particular issue at hand, will support a thoughtful, evenhanded approach to the conflicts review process. This is particularly important when dealing with the types of complex transactions increasingly generated by the health system’s diversified portfolio.
Dualities of interest. An effective conflict-of-interest policy will anticipate the need to address (and perhaps apply different standards to) issues arising from non-traditional interests. These include personal relationships, dualities of interest, and constituent interests. In certain circumstances, the law may allow the board to apply a more relaxed standard of review than what would be applied to traditional financial relationships.
Policy application. There may be value in confirming that the policy as currently in practice applies to the full network of corporate affiliates in the health system, and that the parent company conflicts committee serves as the conflicts review process for the entire system network. In addition, care should be taken to ensure that the definition of “covered persons” (i.e., those employees, agents, executives, officers, directors, and others) to whom the policy is intended to apply is broad enough to cover the full nature of individual relationships arising in a diversified health system.
Conflicts management plan. A sophisticated conflicts process will anticipate the need to apply conflicts management plans, or similar devices, to monitor transactions and arrangements that have been approved, despite the identification of one or more arrangements that may constitute a conflict of interest. These types of approvals are typically made in a manner consistent with state rebuttable presumption-type laws that shift the burden of proof from the organization to a plaintiff when the board has satisfied certain review standards set forth in the law. The conflicts committee will benefit from a pre-approved written template that sets forth the terms and conditions by which the committee will be monitoring approved transactions to ensure continued appropriateness and to protect the hospital or health system from risk arising from the approved conflict.
Intra-board communications. Conflicts committees should also be encouraged to work more closely with other committees whose charter incorporates issues or matters that conceivably could implicate conflicts considerations. For example, the executive compensation committee must establish the disinterested nature of its membership in order to support rebuttable presumption of reasonableness protection. A business transactions review committee may need to evaluate the impact of an actual or potential conflict of interest on the business feasibility of a particular transaction proposal. The audit and compliance committee may be reviewing transactions, proposals, or practices, the legal risk profile of which may be substantially increased by the existence of one or more possible conflicts of interest amongst its individual participants. Again, the general counsel can play an important role in facilitating this communication.
The Value Proposition
In many ways, the review and “upgrading” of the organization’s existing conflicts policy is a win/win proposition for both board members and the hospital or health system. The goal of such an upgrading is to ensure that the policy is sufficient in both scope and operation so that the likely conflict-of-interest issues arising from a diversified health system will be adequately identified and addressed. That’s good news for the healthcare organization, which mitigates its risk from legal and reputational compliance exposure arising from actual or apparent conflicts of interest. That’s also good news to individual officers and directors, who have increased assurance that the policy should work to alert them to, and help them address, potential conflict issues that could affect their individual reputation or legal exposure.
The Governance Institute thanks Michael W. Peregrine, Esq., Partner, McDermott Will & Emery LLP, for contributing this article. He can be reached at email@example.com.
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How to Sell What Works: Collaboration from a Point of Strength and the Impact on Communications
It is challenging to get support around radical changes when an organization is doing well. Yet, even successful health systems must transform today to continue to be successful in the future. In this article, Anne Hancock Toomey looks at how healthcare leaders can develop a clear, compelling vision for partnerships and continually sell stakeholders on the need to transform and collaborate.
By Anne Hancock Toomey, Jarrard Phillips Cate & Hancock, Inc.
It’s relatively easy to win support to fix an organization that is clearly broken. When every observer knows the business is losing money, the customers are going elsewhere, and the staff is leaving to join competition, the company’s leadership has broad permission to make dramatic changes to ensure the organization’s ongoing viability and prosperity.
In business slang it’s called a “burning platform.” It’s the idea that radical change can only occur when instincts of survival trump those of comfort.
But what should leaders do when the platform isn’t burning yet, and they know the fire is coming? How can visionary healthcare leaders transform their successful systems today so they can be successful tomorrow, too?
In short, how can you enact radical change without the threat of imminent failure?
It’s a question on the minds of hospital and health system leaders as they ponder the consolidation and collaboration that are reshaping our nation’s care delivery system and preparing them to compete in a population health management future.
Unlike the more straightforward transactions of yesterday, today’s healthcare partnerships are often more creative, take longer to complete, and are strategic by design. They may not be financially necessary now, but they are vital to a strong tomorrow.
These changes demand a new approach to communications and make deliberate engagement more important than ever before. In this environment, leadership must articulate a threat some cannot see and develop a clear, compelling, and strong vision for the partnership—one that resonates with the health system’s constituents. Then, they must continually sell these constituents on the need to transform and collaborate. The result can accelerate the pace of needed change and position board members and administrators as the visionary, well-intentioned leaders they are.
Today’s Reality: A Web of Complexity
A hospital board member in today’s reality faces a web of complexity unimaginable just a few years ago. Hospitals and health systems are facing decreasing reimbursements with no end in sight; complicated physician employment, alignment, and integration; demands from consumers for transparency; massive trends to outpatient care delivery; the need—and now the mandate—to invest in very expensive technology; planning for the shift to value-based reimbursement, but still operating in a volume-driven payment system; the rise of non-traditional competitors like urgent care and retail clinics; and the list goes on.
Increasingly, this complexity is leading hospital and health system boards to choose a path that provides scale, which most often means partnerships with other systems and complementary providers. In a recent survey of Healthcare Financial Management Association’s senior financial executive members, more than 80 percent responded that they had entered into an acquisition or affiliation arrangement or were actively considering or open to the idea.1
Just a decade ago, a hospital transaction was fairly black and white. For those struggling to make ends meet, large hospital operators were on the hunt to buy and link your hospital to a network of others. At that time, it was most typically a buy/sell transaction, sometimes a merger, and rarely a joint venture. And, while it was a significant event for any community, the need for these transactions was not difficult to sell because the reasoning was clear: the hospital will close or be unable to compete if we don’t.
Today, it’s a very different story. Healthcare providers are approaching these partnerships from a position of strength and with forward-looking vision, rather than financial vulnerability. Think Baylor Health Care System and Scott & White Healthcare in Texas and Conemaugh Health System in Pennsylvania. These systems proactively sought partners not out of desperation, but rather to position for population health, bring new clinical resources to the region, and more.
The current environment also reflects a new level of creativity in partnerships, where non-traditional providers are coming together and large non-equity affiliations are forming, like Stratus Healthcare in Georgia and abouthealth in Wisconsin.
Complicating the Complexity
While the last decade has transformed the healthcare industry, one thing has stayed exactly the same: healthcare is inherently—and acutely—political.
It’s political in the literal sense, of course, as a highly regulated industry with long tentacles into local hospitals from our nation’s capital, our state governments, and, in many cases, county and city governments that own, lease, or provide ongoing taxpayer support to local hospitals.
Healthcare is also political figuratively, given that the delivery of care is dependent on people. The success of a health system is shaped every day on the interplay between doctors, nurses, unions, administrators, board members, bond holders, donors, payers, local employers, business leaders, and others (see Exhibit 1).
Exhibit 1: Political Sphere of Healthcare
Add to these politics an inherent resistance to change, and suddenly the web of complexity of 2015 doubles for hospital board members everywhere.
In fact, according to a recent study, one in four hospital-related transactions falls apart after the letter of intent stage.2 While the reasons for dissolution certainly vary, hospital leaders cite the leading culprits not as financial or legal hurdles, but rather a clash of culture and/or politics (see Exhibit 2).3
Exhibit 2: Deal Pitfalls
If you are a hospital leader, how do you align the politics to create real transformation for your organization and healthcare in your community that’s required to thrive—and survive—in this new era of healthcare? How do you explain why it’s critical to pursue partnerships proactively when the need is less clear?
The answer: you run a smart political campaign. Your organization’s future is the candidate. Your vision—which must be clear and powerful—is your message platform. The votes you need are the stakeholders of your organization—some more than others. There will be opposition. There will be advocates. You need a campaign plan to win (see Exhibit 3).
Exhibit 3: Political Campaign Approach
Building Your Campaign: Checklist for Smart Change Management Communications
1. Build a powerful story. A grave mistake leaders make is to lead with spreadsheets and facts to explain change. Change in healthcare—particularly a partnership—is an emotional event. Speak to it. Build a story that captures the board’s vision in a way that connects to people, such as:
“This partnership will provide us stability so we are here to care for your grandchildren.”
“We will now have the best equipment and technology so our caregivers can offer the highest-quality care.”
“People will have greater access and be able to get care when and where they need it.”
“This is an investment to make our region healthier.”
Call out the threat that most won’t yet see, describe a vision of what healthcare can be and should be, and assure them that you will include them along the journey.
2. Engage early and often with context for change. Long before the board has voted to pursue a partnership, you need to be planting seeds. People need time to adjust to the idea of change. Start by proactively talking about the vision and how changes in our industry mean we will have to change, too. Take the opportunity to be the local expert about how healthcare is transforming, what it means for businesses and patients, and how we deliver healthcare going forward. Providing context for the changes to come will help people understand and adjust when we have a path forward to communicate.
3. Be transparent. To assume you can keep a future partnership a secret is to set your organization up for failure. Once the board has decided to pursue a partnership, the best course is to be transparent about intentions early, not when the deal closes. Sure, there will be more questions you cannot answer than questions you can. But the act of communicating and inviting dialogue with those who matter to the organization is an important message in itself.
4. The messenger is the message. The only thing more important than the message itself is the person (or people) who deliver it. No matter how powerful the words they use, if the messenger is not trusted, you will not be successful. Find and use the most credible voices for your audiences. Board members are inherently critical messengers—some officially with media or elected officials, others informally in conversations throughout the community. There are also important roles for key physician leaders, administration, and others. This must be a trained, coordinated team delivering consistent, complementary messages.
5. Start internal, always. Your employees and physicians have the power to embolden the path leadership chooses—and the power to kill it. Winning the “vote” of your internal audiences is like winning the primary election before the general. They should never, ever hear about key decisions from anyone other than you. Additionally, create ways to engage them—particularly physicians—in the pursuit of partnership, like forming a special clinical committee to advise the board on what matters to the medical staff.
6. Think like the opposition. There will be opposition (see above for the long list of political influencers in healthcare). Anticipate it, and plan for it. Find advocates to help neutralize it. And do not “dance to their music.”
7. Appreciate the “seven times” rule and press the flesh. You cannot send an email announcing a major change for the future of your organization. It’s a surefire mistake. Motivating people to accept change takes time, repetition, and personal interaction. There is a rule in communications that it takes a person receiving a message seven times before he or she really hears it. Just when you grow tired of saying the same message is about the time people begin to get it.
If this sounds like common sense, it’s because it is. But, that doesn’t mean it’s easy or for the faint of heart. Change is difficult, and helping people to understand it and accept it takes commitment to a deliberate engagement effort over time. Today’s era of healthcare demands a new approach and a renewed commitment to communications. The result can be a powerful outcome for the region you serve.
The Governance Institute thanks Anne Hancock Toomey, Partner, Jarrard Phillips Cate & Hancock, Inc., for contributing this article. She can be reached at firstname.lastname@example.org.
1Acquisition and Affiliation Strategies: An HFMA Value Project Report, 2014.
2Molly Gamble, “Calling It Off: Why Some Hospital Mergers Fail and Others Don’t,” Becker’s Hospital Review, September 23, 2011.
3Lindsey Perkins Wade, “Steps You Can Take to Ensure Your Healthcare Deal Closes,” The Private Business Owner, September 5, 2012.
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Planning for the Future: Three Areas for Leadership Consideration
As the healthcare industry shifts to value-based care, the focus of planning should also shift. In this article, Erik J. Carlson, FACHE, FHFMA, FACMPE, explores three important areas for healthcare leaders to consider as they are planning for the future: clinic planning, ambulatory planning, and organizational alignment.
By Erik J. Carlson, FACHE, FHFMA, FACMPE, Point Strategies
Although the fiduciary responsibility of hospital and health system board members and other key leadership has remained relatively unchanged over the years, awareness of available tools and resources to successfully help guide C-suite decision making has never been more important. The healthcare industry is in the midst of drastic change—arguably more change than ever before. Key factors driving this change include data interoperability and availability, the shift from fee-for-service to pay-for-performance, price transparency, consumerism and retail expectations, and a generational shift with baby boomers aging and millennials becoming a prominent part of the workforce. The responsibility these leaders have is enormous and the more information and knowledge they have to plan for the future, the better they can help guide their respective organization.
Traditional healthcare planning focuses on inpatient care—beds, discharges, days, length of stay, MS-DRG service line planning, and midnight census tracking. The focus of analytic, strategic, and facility planning are generally aligned with this inpatient-driven philosophy. However, it is no longer appropriate to plan primarily for inpatient stays when preventative care, various care delivery models, and incentives to keep patients from being admitted become more prevalent. As the healthcare industry shifts to value-based care, the focus of planning should also shift. The new paradigm will have healthcare leaders in search of how to prepare differently for the future. Three of the most important areas for leadership to consider in this changing environment are:
Common themes amongst all three of these areas are data and analytics. Informed decision making is predicated on analyzing data thoroughly with a variety of techniques. Leadership must insist that robust analytics occur to ensure intelligent planning. Starting with the external environment and ultimately looking at data from within, data analytics will objectively show areas of opportunity or threats that key stakeholders may be unaware of.
Clinic planning should be the foundation for all strategic planning. Regardless if you are a critical access hospital or a large health system, the basis for future planning is dependent upon your physician and/or mid-level (i.e., physician extenders) planning.
When undertaking clinic planning there are a few important tactical items for management to focus on:
Physician supply demand: Physician demand ratios are created at a national level. These ratios must be adjusted for local population distributions. For example, a community may have a higher percentage of people under 18 years old relative to the national norm. This variation suggests the national demand ratio needs to be altered for pediatricians in the particular market. If you apply national ratios to a market without considering the local impacts, the ratios are less meaningful and less informative.
Recruitment: Recruiting providers at a local level varies in terms of need and ability to attract talent. First, it is impacted by the supply and demand in a particular service area and the deficit or surplus by specialty. Perhaps more important than the supply and demand is a community’s ability to attract and retain primary care physicians, specialists, and subspecialists. For example, without a holistic community approach (e.g., school, chamber of commerce, housing, amenities) to attract a primary care physician, a particular organization may not be able to fill the quantified needs.
In/out-migration: Estimating in-migration and out-migration of patient demand cannot be underestimated. After a service area’s demand is established, the supply inventoried, and the ability to recruit estimated, it is imperative in clinical planning to make assumptions on the in-migration and out-migration of patient demand. If it is estimated that 50 percent of orthopedic service demand leaves a given market, is it reasonable to assume a provider can capture all, or even a portion, of the demand services?
Board members need to be aware of these tactics. Ensuring that adequate clinic planning is taking place and there is proper consideration for local nuances is paramount to future planning. Board members should ask if thorough medical staff development plans have been taken into consideration for strategic planning, and if the medical staff development plan considers mid-levels, local population adjustments, and productivity measures.
Ambulatory planning is another key focus as utilization of outpatient services increases while inpatient utilization on average is reducing. The cost of providing care in an outpatient setting is often less expensive than the inpatient setting and insurance companies are working more closely with providers to keep costly admissions or readmissions from occurring. What does the market opportunity look like for non-inpatient services, and is there estimated leakage to other organizations? These questions are relevant to all healthcare organizations regardless of whether they are reimbursed on a cost basis, value basis, or another arrangement.
The shift from inpatient planning to ambulatory planning is a trend that will continue. Only considering what the inpatient bed need will be in five–10 years is not only limited in nature, with the shift to value-based care, it could be harmful to an organization. Outpatient surgical cases, imaging procedures, and emergency department visits are where organizations are seeing more growth on average nationally—it is important for healthcare leaders to understand the impact of these. The reasons for this shift range from the ambulatory environment being less costly, healthcare policy incentives and/or penalties, technological shifts, pharmaceutical and instrument innovation, a focus on value, and even practice pattern changes.
Strategy is a key component to all planning. If an organization plans to start a new service line, recruit a new specialist, acquire an independent primary care clinic, or build an additional OR to provide more capacity, the anticipated change in volumes will be impacted accordingly. It is imperative to not only understand the shift in general demand and policy implications, but to integrate these baseline shifts with strategic initiatives.
Hospital leaders must be challenged to take a deeper look at non-traditional inpatient services when strategically planning for the future. Although the data is often more difficult to obtain and less consistent than inpatient data, board members should insist that ambulatory planning be a top priority. A good indicator board members can look at is adjusted patient days or adjusted discharges.4 This will help healthcare leaders understand how outpatient revenue vs. total revenue is trending and the relationships between them.
Organizational alignment is an imperative that needs to be considered when planning for the future—specifically around clinical and financial integration. Alignment can range from an acquisition of an entity to a loose affiliation amongst organizations to something in between. Regardless of how the organizational alignment model is defined, an organization must identify the goals of their alignment strategy. Organizations need to balance the level of independence they wish to maintain and what clinical and financial goals they are trying to achieve with the degree of risk aversion it has.
Board members must guide hospital leaders to think critically about this as the potential partner chosen is equally as important as the items listed above. A few questions to ask are: Will the organizations align culturally? Is there enough flexibility to allow the relationship to prosper? Are the technological differences cost prohibitive?
As healthcare organizations go down the alignment path they must do so with clear objectives, be dedicated to achieve the defined goals, perform the proper due diligence, and be efficient at executing their plan. The results of an organization’s alignment strategy have many impacts. A few of the most notable are:
Space or “bricks and mortar” need
Community service offerings
Clinic, ambulatory, and organizational alignment planning are related and often impact one another. Being mindful of this and understanding quantifiable data overlaid with local intelligence can enable any organization to plan carefully and effectively for the future.
In conclusion, technology, data availability and connectivity, policy, value-based care, and a multiple other factors are driving transformational change in healthcare. Healthcare leaders and board members need to understand these factors and leverage available resources to help plan for the future—the traditional approach is no longer enough.
The Governance Institute thanks Erik J. Carlson, FACHE, FHFMA, FACMPE, President, Point Strategies, for contributing this article. He can be reached at email@example.com.
4For more information and a worksheet on calculating adjusted patient days, see http://portal.hud.gov/hudportal/documents/huddoc?id=46151x1HSGH.pdf.
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