Compliance judo: Leveraging government audits for your benefit

Jeffrey Jeter (jjeter@joneswalker.com) is Special Counsel in the Healthcare Practice at Jones Walker LLP in Baton Rouge, LA.

The grizzled, old sensei leaned forward, his battle scars telling the tale of many hard-fought wars over the years. In a measured, hushed tone, he revealed the ancient battle secret passed down by the great masters from generation to generation: “Find victory through…leverage.”

The discipline of judo dates back to the 19th century, and is based on the principles of “seiryoku zen’yo” (maximum efficiency with minimal effort) and “ju yoku go o seisu” (softness controls hardness).[1] Judo’s founder, Kanō Jigorō, famously described it as:

Resisting a more powerful opponent will result in your defeat, whilst adjusting to and evading your opponent’s attack will cause him to lose his balance. His power will be reduced and you can defeat him. This can apply whatever the relative values of power, thus making it possible for weaker opponents to beat significantly stronger ones.[2]

These same principles can be applied to how organizations audit and monitor their compliance. Often described as the 400-pound gorilla, the federal government can be a fearsome adversary. They have limitless resources and a voracious appetite to pursue those they believe are ripping off the system. As one of the “good guys,” we applaud their efforts to root out the wrongdoers, but deep in the back of our minds, we all fear the same thing — being swept up in the crusade. Whether we are targeted with a bogus charge or we must contend with an innocent mistake being distorted into something far more sinister, we must be always ready to demonstrate our integrity and receive credit for the good work that we do. A key part of this demonstration involves our own auditing and monitoring activities.

We all conduct audits and internal reviews. Well, let’s qualify that — we all should be conducting audits and internal reviews. These are foundational to an effective compliance program. At its most basic level, the government expects that prudent and responsible providers will constantly be monitoring their practices to ensure that they are meeting all billing standards. Meanwhile, we extol the value of internal audits as a strong deterrent against wrongdoing. However, how can high-integrity organizations use their auditing to achieve the highest level of compliance enlightenment?

The answer (again): Compliance judo.

Our ultimate objective is to fend off any attack by the government on the integrity of our organizations. Audits and reviews can be your golden glove or your Achilles’ heel, and the difference ultimately turns on what you audit and how you audit. This is why the concept of compliance judo is so important. You must learn how to think the way the government thinks so you can respond to their skepticism and criticisms. You must anticipate the government’s strategy, their trajectory, and how they fight the fight. This will allow you to dodge and direct; to pivot and parry; and to use their weight, size, and strength to your favor.

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