There are many job openings for Chief Compliance Officers (CCOs). All a person has to do is look at job posting boards at the Health Care Compliance Association (HCCA) or elsewhere. Individuals often speculate about what happened to the person who originally held the now vacant position. Did the person retire, find a better opportunity somewhere else, or get terminated? If the person was terminated, it would be nice to know the reasons why. The reality of Compliance Officer positions is that some officers who have moved on to “greener pastures” or were forced out of their organizations may have been a result of being too good at their job. The concept of doing too good a job seems contrary to what typically prompts an individual to leave an organization. The Department of Health and Human Services Office of Inspector General (OIG) has frequently noted that an effective Compliance Officer is an agent for positive change in an organization. Unfortunately, it is also common for change to be resisted by the executives affected by it. That resistance sometimes rises to the level of outright hostility. The CCO may be accused of behaving like a “bull in a china shop” or words to that effect. Another common problem arises if the CCO finds questionable behavior or actions by executives. In those situations, executives will not be happy about the CCO meddling in what the executives see as their way of doing business. This kind of tension may result in executives making moves to get rid of who they view as a trouble-making CCO.
Who can fire the Compliance Officer?
One question to ask while considering a new position as the CCO of an organization is: “Who has the authority to terminate the CCO?” If the answer is management, it may be a “yellow flag” warning that job security could come at a price that includes compromising principles. What is the best practice to ensure that a CCO is not fired for doing his or her job? The answer comes from the OIG’s repeated statements that compliance starts at the top, which means at the Board of Directors (Board) level. The OIG states that the CCO should report directly to the Chief Executive Officer (CEO), but also makes it clear that the CCO should have direct access to the Board’s Compliance Oversight Committee.
Tom Herrmann, who has had over 20 years of experience in the Office of Counsel to the Inspector General before becoming a compliance consultant, notes: “In recent years, the OIG has been more outspoken on the subject of direct involvement of Boards in providing Compliance Program Oversight. In their mandates under Corporate Integrity Agreements, the OIG even includes a number of actions it expects from Board members, including certified statements concerning their actions in oversight of the Compliance Program. Boards are expected to have a Compliance Oversight Committee that should include meeting with the CCO on a regular basis to oversee the job being done and to support compliance efforts.”
Steve Forman, who served as CCO for one of the largest hospital systems in the country and acted as the Interim CCO for other organizations, states: “Meetings between the Board and the Compliance Officer are critical and should include meeting in executive sessions without management being present so that the Board can ask questions and learn of any emerging management issues. It also keeps management in bounds, knowing any ‘high-handed’ actions may be the subject of these meetings. On several occasions, having these meetings saved me from very difficult circumstances.”
Carrie Kusserow, a twenty-year veteran who has served as a Compliance Officer and consultant evaluating Compliance Programs, notes: “It is best practice for the termination of a CCO to include consulting the Board in advance and obtaining its sign-off on terminations, but just because the Board has to sign-off on terminating a CCO doesn’t mean that the CEO or other senior executives may not call for support in a termination decision. However, if the proximate cause of the action relates to the CCO probing questionable conduct, anyone meeting with the Board on the record may find themselves in ‘hot water’ should an enforcement agency find out about the wrongful conduct and that the executive leadership was trying to shut it down by getting rid of the CCO. In such cases, rash actions by individuals calling upon the Board to consent to firing the CCO may be tempered by the implications of doing so.”
All three of the above referenced experts agree that creating a process to include the Board in slowing down precipitous actions by management to terminate a CCO, especially one who is doing the “right thing,” is good management practice. Rashly terminating a CCO in anger may have other negative consequences for the organization. It is becoming more and more common to find ex-CCOs and other former Compliance Office employees becoming “whistleblowers” with the Department of Justice (DOJ). The fact these former employees were terminated and then choose to bring the government evidence of wrongdoing by their former employer can be devastating to an organization. Therefore, for both management and CCOs, having a deliberate process including the Board in termination decisions is a wise course of action.Subscribe to blog