The federal government has its own ideas about which officers of a healthcare organization make good compliance czars and which do not.
In HHS' model hospital compliance program, the agency is quick to point out the potential conflicts of interest that arise when a general counsel is tapped for the job.
"By separating the compliance function from the key management positions of general counsel or chief hospital financial officer, a system of checks and balances is established to more effectively achieve the goals of the compliance program," the model compliance plan says.
The two jobs require different sets of skills, says Alan Yuspeh, who heads Columbia/HCA Healthcare Corp.'s 16-person ethics and compliance department.
"Someone can be a super general counsel but not an effective compliance officer," he says.
General counsels, by definition, are interested in protecting and defending the organization, says Alex Schillaci, head of Deloitte & Touche's national regulatory compliance group.
On the other hand, compliance officers are expected to be impartial. They should promote fraud-busting initiatives and encourage employees to disclose any potential wrongdoing.
"A compliance officer should look at a situation without assuming the company is right and without assuming management's point of view," Yuspeh says. "He or she should provide day-to-day guidance and leadership to people with operational responsibilities."
"You have to be independent-fearlessly, to an extent-and you can't always be everyone's friend," says Meg Mazzone, vice president of ethics and business conduct at Nashville-based Quorum Health Group.
Straddling both jobs can also confuse attorney-client privilege, Mazzone says.
"It's an open question of whether it's good to use (the privilege) broadly or not," she says. "If you're keeping everything privileged, how are you going to show that you're doing self-policing? One of the benefits in separating it out is that I don't have any pretense that what I'm doing is privileged."
Conflict can also rear its ugly head when the two jobs are too much for one person-especially at large healthcare systems.
Quorum, which had paired the general counsel and compliance officer jobs, split the title in early 1997 "to give the jobs the proper emphasis," Mazzone says.
"It was apparent from a workload standpoint that it was difficult for the general counsel to retain that (compliance) position," Mazzone says. "If you do it right, it's two full-time jobs."
Most large systems or companies can afford to hire a full-time compliance officer. But smaller organizations may have a hard time following HHS' recommendation.
"If you say that (the compliance officer) can't be the general counsel, you put a small hospital in a tight spot," says Roy Snell, formerly the compliance officer at the University of Wisconsin Medical Foundation and now a consultant at Deloitte & Touche. "You have to be respectful of the (inspector general), but you also have to understand what kind of world we're dealing with here."
Figures weren't available on how many hospital systems have general counsels acting as compliance officers.
Good compliance officers bring a mix of experience and skills to their work: finance and accounting, clinical experience and administration.
"Being a compliance officer . . . involves some knowledge of the law, some human resources skills like training, and some audit and monitoring ability," Yuspeh says. "It makes sense to have one person with all these skills."
At Columbia hospitals, for example, each facility was asked to name one of its four top officers as its compliance officer. About 25% of the hospitals chose their chief financial officers, another 25% chose their chief executive officers, and the remainder were split between chief operating officers and general counsels.
"In a freestanding hospital, the risk of making your CFO the compliance officer is that your CFO is your comptroller," Yuspeh says. "He's too responsible for financial control and financial accountability."
Ultimately, experts say, the best person for the job is someone who can expedite change.
"Having trouble facilitating change is the No. 1 challenge," says Snell, who ran a hospital for 10 years before becoming president of the Health Care Compliance Association. "As an administrator, you spend your whole career facilitating change. You know what works and what doesn't."
A lot of the legal legwork can be delegated to an in-house or outside counsel, but a compliance officer should ideally have some sort of legal background, experts say.
"Those individuals can get up to speed, and they know how to conduct investigations," Schillaci says.
While the model compliance plan points out potential conflicts of interest where CFOs and general counsels are concerned, it also "leaves you room to do what's right for your organization.
"Whoever (the compliance officer) is, it has to be a senior and well-respected person," he says. "Practically speaking, you want an effective compliance program. And at the end of the day, that's all that matters. If the general counsel can make it work, so be it."