Board Oversight is a Key Determinant in Corporate Integrity Agreements
Weak evidence of oversight results in Board member compliance certifications; engagement of Compliance Experts
At the recent HCCA Compliance Institute, speakers from the OIG discussed a number of changes in Corporate Integrity Agreements (CIAs) to ensure organizations can be relied upon to operate in the future in accordance with applicable laws and regulations. One major area of change involves mandates for Boards. The OIG believes a key factor in determining effectiveness of the compliance program is how well the Board has been meeting its fiduciary duties and responsibilities for overseeing compliance. If the OIG finds that the organization has an effective program with proper oversight by the Board, the OIG may decide that a CIA is unnecessary or mitigate terms and conditions. However, if it finds the program is inadequate; there will be a CIA and it will include stringent requirements on the Board.
Board Member Certification Mandates
Tom Herrmann, JD, is a nationally recognized expert healthcare consultant who has assisted with more than a dozen IRO engagements. He previously served for many years as an OIG executive who oversaw CIA development and assignment of monitors. In a recent nationally broadcasted Webinar, he explained that the OIG has made clear that it intends to hold a variety of executives personally responsible for compliance, including Board members. CIAs now require personal certifications that all requirements of the CIA have been met, and that procedures have been implemented to ensure compliance with all applicable laws. These certifications are a “game changer,” in that they place a heavier personal burden on Boards, executives, and compliance officers. These mandated certifications in CIAs are serious business and carry heavy penalties. CIAs often include a provision for a stipulated penalty for each day the organization is out of compliance with deadlines, and a $50,000 penalty for each false certification. A false certification could also violate 18 U.S.C. §1001, which relates to providing a material false statement to a federal government agency.
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CIA Mandated Compliance Expert Engagements
Carrie Kusserow, MA, CHC, CHPC, CCEP, is another expert who has served as both compliance officer and interim compliance officer for major health care systems, including those with a CIA. In the same webinar, she explained that new CIAs include the mandate for Boards to engage a Compliance Expert to assist them in meeting their obligations of oversight and enabling them to sign their certifications. They must review each annual report of their IRO and Compliance Expert, and evidence having made reasonable inquiry regarding its content and act upon any noted deficiencies. The OIG has made clear that its decision of whether to include Board mandates depends on whether it finds sufficient compliance oversight by the Board during CIA negotiations. The mandate reflects the fact that the OIG generally finds most Boards do not have the necessary expertise.
Boards are Expected to Have “Compliance Literate” Members
Both Herrmann and Kusserow stated that a best practice is for Boards to include one or more members who are “compliance literate” to ask the right questions and assess program effectiveness. A compliance literate person is someone with experience and expertise serving as a compliance officer, or as a consultant to compliance programs. Having expertise on the Board will allow it to evaluate the answers to questions, and evaluate needs and performance. This goes a long way in ensuring that the Board meets its fiduciary duties and responsibilities.
Tips and Suggestions for Compliance Officers
- Begin educating and warning senior management and Board oversight committees on their fiduciary obligation and the personal consequences for failing to meet them.
- Urge the Board to include one or more members who are “compliance literate” to assist in evaluating compliance program effectiveness and asking the right questions.
- Engage Compliance Experts to assess the program before encountering the DOJ and OIG. Brief the Board on the results to facilitate active oversight of the Compliance Program, to give credit for evidencing an active program, and to identify opportunities for improvement for the compliance officer. Such evidence could assist in preventing the OIG from imposing Board and executive mandates, and possibly avoid a CIA.
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