AHLA's Speaking of Health Law

Best Practices for Working with Consultants

• American Health Law Association

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Jenelle Beavers, Managing Director, Alvarez & Marsal, and Emily Little, Senior Counsel, University of Missouri System, discuss best practices for working with consultants. They cover issues related to identifying consultants, contracting, confidentiality, data transfer, communication, and concluding engagements with consultants. Jenelle and Emily spoke about this topic at AHLA’s 2024 In-House Counsel Program in Washington, DC.

Learn more about AHLA's 2025 In-House Counsel Program in San Diego, CA here.

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Speaker 1:

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Speaker 2:

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Speaker 3:

Hi, Emily. It's really fun to be , uh, with you , uh, today, this afternoon. I enjoyed presenting with you at the 2024 in-house, a HLA conference in June in dc . Um, and I'm looking forward to talking more about best practices for working with consultants. I thought maybe we'd kick it off and you could introduce yourself and then I'll introduce myself , uh, before we get started.

Speaker 4:

Sure. Thanks, Janelle . I am currently a senior council at the University of Missouri system, and here I advise the hospitals, clinics, professional schools in multiple areas, including regulatory questions, compliance, investigation, and litigation matters. How about you?

Speaker 3:

Uh , I currently am a managing director at Alvarez and Marcel , which is a global consulting firm. Uh, previously I have been outside counsel, in-house counsel, and now I , uh, primarily work with lawyers on investigations and compliance monitoring, providing forensic accounting and data analytics support. So, and I work on a lot of , um, healthcare matters in my current practice. Before we get started, I thought I'd do a little disclaimer for the both of us , um, which is that our views, concepts, advice, and opinions that we express are , are , are our own and don't necessarily reflect the user position positions of our employers. Um, and that the information , um, that we have has been made available for information purposes only. That sounded very lawyerly .

Speaker 4:

Absolutely. So here are a few of the things that we're planning to cover today, right, Janelle ? We've got first , uh, identification of experts and consultants. Basically, when do you need one? Then we wanna cover , um, contracting confidentiality provisions, data transfer, and a super important piece of this is communication with our consultants and experts. And then finally, kinda addressing the conclusion and closeout.

Speaker 3:

Awesome. You know, there are a few reasons why you might wanna hire a consultant, why you also , um, might wanna hire outside counsel . And I think we intend to kind of be talk when we're talking about one. We're talking about other, the other for the purposes of the , this conversation. I think that's right, Emily. Yes . Um, so , uh, if I, if I don't say both, I mean both. Um, so I think you might need an , an outside help , um, in a number of different circumstances. Um, one that comes to mind is , um, a conflict of interest. Interest or even the appearance of a conflict , um, of interest. So you might think that, you know, the folks in house that could be doing the work might, you know, have too vested of a stake, might have too much information, and you really want sort of like an outside unbiased perspective, or at least you wanna say that you have that , um, outside unbiased perspective. Um, you might have something that requires really just like a , um, a skill set that you don't have on your team. Someone who's really , um, deep in the weeds on a part in a particular subject matter , um, or have the technical skill that that folks on the team , uh, don't have. And you also might like not have the time to do it on your team. And so you need that outside help. Uh , along along these lines would also be , uh, the complexity. Uh, if it's , uh, really a lot of, a lot of detailed scope , um, that your internal personnel don't , uh, don't have the time or bandwidth , uh, or resources than an outside consultant or, or outside counsel could be useful. It also might be that you wanna rely on the reputation of an outside provider, that they are known to be sort of an expert at what you need. Um, and that the idea of engaging them sort of leads to more credence , uh, or weight into how you're handling , uh, the matter. So I think those are things that , um, that in-house counsel can be thinking about when they decide , uh, to, to seek outside help. Um, one of the things that we talked about at , um, at the conference that I thought was really interesting, and some of the folks , uh, in the audience weighed in on, was this idea that you would kind of already be surveying the market for people , um, who, who know how to do these things instead of waiting till it's sort of an emergency or, you know, you really , you feel like you're just sort of like looking in the phone book , trying to find, find someone. So this idea that you develop a roster of professionals who kind of work in your area, who you might be able to call on. So maybe somebody you met at a conference or you read some thought leadership people in your network. And so thinking about, you know, folks who do e-discovery, people who do , um, investigations and sort of think about kind of key firms and individuals in those spaces so that it's not so , um, emergent if the need , uh, arises. I thought the audience really , uh, kinda , uh, kind of thought that was a good idea. Um, Emily, do you wanna talk a little bit about the agreements once you've decided kind of that you need to engage someone, you've either chosen them from your roster or identified them, what, what are your thoughts as to how you go about contracting with , uh, a consultant or outside counsel ?

Speaker 4:

Sure. Absolutely. So, as in-house counsel you mentioned, we're often involved in identifying when a consultant is needed and helping to isolate who could best serve the needs of the organization. And then the contracting piece council's often involved as well, right? Because we're gonna be looking at legal terms, understanding what is critical to the business, anticipating areas of disagreement, and figuring out what's negotiable and, and what isn't. And so from the perspective of the in-house counsel and the client, we really want to set clear expectations about the scope of work, the timeline, the fees, the work product. I mean, we've all been in those situations where we get a consultant on board and we say, okay, this is the issue we need to look at. And then they may come back with something verbal and it's just not, it's not really what is needed , um, to address the situation. So trying to think about that on the front end of what is the deliverable? Do we want to bake that into the contract to say that we expect at the end of this you'll be providing a written report and a finished policy for the , the health system to, to use. So just setting those expectations and what's going to be , um, delivered. And then, you know, thi this was something else that, that came up at our , um, conference last summer as well, Janelle just kind of talking about the negotiation points on fees and how those are handled, and people are getting more creative and flexible to look at percentage discounts doing maybe a lower set fee for an initial pro , uh, project, or even if it looks like it's going to be a long-term relationship, having , um, rates locked for a certain time period. I, I think is also , uh, a reasonable request.

Speaker 3:

Yeah, for sure. I think I, and I think , um, we also talked about boil , like sort of battling boilerplate language, right? Mm-hmm <affirmative> . So what happens when you have , um, you know, something in your kind of template contract that is at odds with , um, with the other parties , um, was , was kind of interesting. What do you think, what do you think the consensus of the group was about, about sort of the battle of the boilerplate, Emily?

Speaker 4:

Well, it , some of those things can depend on the state, actually. So I know for my university, we are a state university, so we have specific provisions that either we need to have in every contract or that we can't have, you know, those terms that are really non-negotiable. It seemed that the, the consensus to me was the attitude of we will not change a single thing in our contract is not mm-hmm <affirmative> . Really acceptable. And I know one tool that some have used is either adding an addendum if there are going to be changes to a sort of template agreement that a consultant is using, or, you know, you may in-house have some outside consultant guidelines that you're gonna indicate need to be followed in addition to what is in the agreement. So those may be tools that people can use.

Speaker 3:

Yeah, for sure. And I recall people talking about kind of incorporating those guidelines into the agreement, right? So, you know, you have to bill in this particular, use this particular platform for billing or, you know, the, the bills have to be submitted within, in this time period to be paid and things like that, that get incorporated into a contract. Right. Um, what are your thoughts about , um, kind of confidentiality as part of the contracting or negotiation process ?

Speaker 4:

Well, it has to be considered honestly , um, early and often. So often we're looking at this in the pre-engagement phase where we're gonna have a non-disclosure agreement in place in considering whether a certain consultant is retained and then putting those confidentiality agreements that are needed within the contract. And then after the contract is final, moving forward, determining what is the role of in-house counsel versus what is the role of the consultant in overseeing the confidentiality of information that is shared or disclosed. How are documents labeled? How are emails labeled? Who's included in those communications? All of those things really need to be clear at the outset and having language to say, this is the limited group that it will have access to this information if anyone else needs to be added, that needs to be cleared or approved through a certain chain of approval.

Speaker 3:

Yeah, that makes sense.

Speaker 4:

So what about data transfer? Janelle , this is a , this is a big area that, that covers so many different aspects of the consultant relationship.

Speaker 3:

Yeah, so I would say, I mean, it , it kind of goes along with the confidentiality, right? So you have this sort of like, who, who in the entity needs to know , who needs to know on, on either end right? About what's happening? Um, but then what about the actual information that's going back and forth? So a lot of times in my, in my work, because I'm dealing with sort of large data sets , either fin like a lot of financial data , um, or claims data or concur data, right? Like this is something that, that I deal with daily. And so thinking about how, how we get that information, what we do with it, and even, you know, the jurisdiction, right? Like many entities are global and which means they're , um, subject to a variety , um, of data pri privacy laws. Um, so I think, you know, at the outset of the matter, thinking about where is this data? Is this data even in the United States , um, where is it going to go? So thinking about , um, various laws like hipaa, GDPR , the Swiss Data protection law, China State Secrets Law, ffa , sort of all of these things, and getting a sense of the outset of which , um, which, which laws are going to be applicable, thinking about, you know, PHI and IP and all these things. And so at the, at the outset , um, being mindful of these and then when engaging your outside counsel or consultant , um, they should have standard procedures for dealing with this, right? So if you're in the process of hiring and engaging and you're not getting kind of a straight answer , um, or a clear process like that is something that, you know, I would encourage in-house counsel to really kind of kick the tires on before engaging, because you want, these aren't things that you kind of wanna do on the fly, right? If you're gonna <laugh> , if you're gonna , if the GDPR is going to be in play in your matter, then you want somebody who already understands that, who already has the sort of data environment to deal with those things. Um, and that you are not the Guinea pig , um, for the, for the particular matter . So I think that's important , um, at the outset , um, to think about how your information , um, how your client's information is gonna be, is gonna be safeguarded, right? Because you don't want, you don't wanna , you don't want an engagement that's, that's designed to be compliant or prevent exposure to then give you additional <laugh> additional compliance or exposure issues. Um, you know, sometimes an engagement might require a business associate agreement , um, to ensure that , um, PHI is safeguarded , um, or some other, you know, even just within their regular agreement, like really sort of spelling out sort of how you're gonna deal with data and then also what you're going to do at the end with the data, right? And, and thinking about and thinking about that. So , um, good outside counseling consultants will be able to , um, will be able to address this. Um, but it's certainly something that you should have on your radar and then be able to pivot if something comes up that all of a sudden you do need , um, data from somewhere else, or it turns out the data was was housed elsewhere, that, that you have the ability to pivot. But certainly I think in an engagement, asking those questions at the outset is, is the most important. Mm-hmm <affirmative> . Sure .

Speaker 4:

Absolutely. Yeah . Well, and for some consultants, they may have unique platforms that they request be used, and I know for those, for PHI , for example, there may need to be an IT security review mm-hmm <affirmative> . To make sure that that is gonna be compliant before, you know, a whole bunch of protected health information is, is put through that platform. I know one other measure that can be taken is when we, we talk about the data transfer and the access , um, for some projects there may be the ability to set sort of a deadline on how long the information will be accessible, you know, for example, through a OneDrive account or something like that. So it's available for access for the next 30 days, and then it, you know, no longer accessible removed and trying to close out , um, that transfer piece.

Speaker 3:

Sure. And that actually makes me think of another thing like, we'll, you know, we'll often get kind of access to a client's environment , um, to make things more efficient, right? Because, you know, a , a good consultant or outside counsel wants to make their client's life easier. So instead of, you know, picking up the phone 20 times, like you have kind of access to the company's environment, but you wanna make sure you turn that off, right? Like , you don't want it to , you know, you don't want that to be indefinite. And so thinking about the users and, and doing that at the end of the engagement, and we'll talk about this a little bit later, but , um, it's almost just as, it's almost as important to properly close something out. And I think , um, thinking about like the data transfer and all of that is , is certainly part of that , um, is certainly part of that exercise for sure. Yeah .

Speaker 4:

Yeah, absolutely. So can you , um, talk for a minute about the importance of communication between the in-house counsel , the client, and the consultant?

Speaker 3:

Yeah, I mean, to me this is like, this is like the heart of the engagement. And I think what's, I mean, all of it's important, but this is where this to me like is , is what defines kind of a good engagement and a not good engagement, right? Like, and helps and how you're going to actually get what you need , um, kind of under this agreement. So I think, again, we go back to, you know, at the beginning, how are you , um, how are you detailing how the engagement is going to go, right? So you wanna know who at the consultant is going to be kind of the key point person that might not necessarily always be , um, the partner. Maybe it is, but you should decide this, right? So who is kind of the, the person that you can go to that's gonna know kind of the whole scope of the matter , um, gonna know what's going on, be responsive, who is it? And I think it's even more important. Who is the in-house person? Is it a business leader? Is it counsel who should be copied? Right? So some, some in-house lawyers wanna be copied on everything, even if they, you know, don't have to be in the day-to-day, they still want to know , um, who needs to get the documents, who needs to do , um, the reviews, and how much time do they need? So sort of outlining that at the beginning I think can make , um, an engagement , um, much more , um, much more efficient. Um, I think it's helpful when a company has an internal project manager , um, to kind of oversee things , um, and define who needs to know , um, who needs to know who's doing , um, who's doing what. I think, you know, it depends on the matter whether or not you need kind of regular check-ins or whether it's ad hoc. Like, I think being sensitive to cost , maybe you don't always need a regular meeting, but you also, you know, want to keep people on task. So I'm kind of a person that's, you know, if you have , if you have a team and you have a meeting and people know that they have to report at that meeting, like sometimes, you know, people work faster. But I think like that's something to think about though, because I think having meetings for the sake of meetings when people are billing by the hour is not necessarily , um, is not necessarily the best thing. So kind of tailoring it , um, thinking about what you've communicated in a work plan , um, at the beginning and, and kind of thinking about like each step and keeping track of those, like good consultants will , um, will do that and figure out when the , um, decision points where the decision points are , um, and who needs to , um, make them , um, or , or things to think about. Um, I'm curious , um, about kind of the review of the, the consultant or outside counsel's work from your perspective. Like what, what are, what are tips you have for looking at drafts, reviewing the work and, and kind of how you think about that?

Speaker 4:

Sure. As outside counsel , I really want to try to support our consultants and help them make sure they're getting the information they need. We don't wanna make the project harder than it needs to be. And when we're in-house, we are working with these client contacts daily, we know a lot of the behind the scenes information. And so we can be a , a really good contact to help facilitate information flow and understanding of the organization when we get draft reports. I think it's also really helpful to review them closely and let the consultant know if they've got an executive's title wrong or they have included , uh, initials that aren't correct, given how the organization typically refers to a certain department or unit, you know, just to help give them that , uh, credibility as the report moves forward to a final project.

Speaker 3:

Yeah, for sure. I also, I mean, I think kind of from being in-house and being in the position I'm in now, I think it's easy when you're in-house to, you know, you get drafts and you, you like, you're busy, right? And so you've kind of relied on this like outside professional, and so you get a draft and like maybe you look at it, but then, you know, two weeks later there's like another draft, but then you're sort of rehashing. And so I think, you know, I really encourage clients to like, you know, dig in when you get the first one <laugh> , because it is, it's often more efficient , um, going forward to kind of take the time to provide that, that insight that you're talking about Emily , um, kind of in real time . Like I think it leads to a better work product when you're, because you have, the consultant has value in the ways we talked about in the beginning, right? Maybe they have expertise, they're unbiased, they have more time, but you also are deep in the business, right? And so that value add is, I still think essential even when you've engaged , um, kind of consultant or outside party for sure. Mm-hmm <affirmative> . Alright . So let's talk, we've alluded to the , the , there's been a big lead up I feel like to how you conclude, how you conclude , um, one of these engagements. Um, tell us , um, tell us a little bit about kind of your viewpoint on the best way to kinda wrap up one of these engagements.

Speaker 4:

The first thing that you can consider is how are you transitioning the consultant's responsibilities or the advice, the work product that you've received from the consultant into the day-to-day operations of the organization? So take for example, an audit situation where the consultant comes in, does the audit, there's an action plan in connection with those , um, improvements, but what can you do in-house to follow up ? You can of course come back in six months to a year and do a follow up internal audit and see how , how are things going and , um, figure out, you know, is the plan workable? Do we need to make some changes even , um, considering what the consultant has initially recommended is that working in real life. Um, so that, that's one piece that we cover from, from the in-house side. And then in looking at sort of the wrap up with the consultant, considering the retention of documents or other materials, are we okay with their retention? Do they have a policy for how long they're keeping things? Is there anything that we wanna specify they need to return or destroy or we need to end access? Like we, like we talked about, ideally those types of provisions would be addressed in the agreement, but sometimes it may not be specific to certain things. And, and you have to consider how, how to address that and what other communications might be necessary with the consultant to make sure things are properly wrapped up. And I think sometimes it's hard when you are not sure if you want to close out the engagement or not, right? I mean, sometimes it's wise to leave that consultant sort of on call , if you will, during the time that you are looking at implementing a corrective action plan because maybe you will need to go back to them and you wanna go ahead and have them continue to retain materials and be able to loop back around to, to comment or, or weigh in on how things are going. So it really is a strategic, and it's often not a legal decision, sometimes it's more of a business decision. Uh , but those are some of the things , um, that I'm thinking about at the conclusion.

Speaker 3:

Yeah. And I would , I think, I mean, I think that's right, right? Like particularly when you're dealing with sort of accounting things like my team is right, like keeping, you know, we'll keep work papers because people might come back and have a question, right? And so you wanna make sure that it's within the confines of like confidentiality and all of that, but sort of a record of what was done and all of that is super , um, important , uh, for sure. Which, which you can do and still, you know, deal with kind of the data confidentiality. Um, and I think, you know, depending on the nature of the project, you know, ideally identifying, you know, who at the organization is now going to be responsible for this and kind of outlining , um, you know, ideally, I mean probably in writing sort of like, okay, here's what was done, here's the recommended next steps and here's where everything is, right? Like, so that if, you know, if particularly if the consultant has really taken the lead on the project, that it's not like they disappear in the night, right? Like nobody, you , you , you wanna sort of leave , um, the, the organization armed to go to go forward, kind of like you said. Um, and to be available for, you know, any kind of downstream inquiries or questions , um, and have have kind of a contact point in case , um, in case things come up. I don't think sort of disappearing in the night even when it, when it's over is, I don't think that really happened , but it's certainly , um, it's certainly good to be available.

Speaker 4:

Thank you . Well, thank you Janelle . I think that we've covered everything that we plan to talk about today. So I appreciate , um, your time. Thank you to everyone who is listening. I do hope that everyone can attend the A HLA in-house council program in San Diego in 2025 and that we can see you all there. Thank you.

Speaker 3:

Thanks Emily. It was really great being with you today.

Speaker 2:

Thank you for listening. If you enjoyed this episode, be sure to subscribe to ALA's speaking of health law, wherever you get your podcasts. To learn more about ah a and the educational resources available to the health law community, visit American health law.org.