The Department of Health and Human Services (HHS) Office of Inspector General (OIG) recently warned that it will look for evidence of active Board oversight of the compliance program when negotiating the terms and conditions of a Corporate Integrity Agreement (CIA). The OIG issued the warning at the conclusion of the 2017 Health Care Compliance Association (HCCA) Compliance Institute. The OIG indicated that a Board’s failure to meet its fiduciary responsibilities will be considered as a contributing factor in determining whether government intervention is required. More stringent requirements will be placed on those organizations evidencing weaker Board compliance oversight. Where inadequate oversight exists, the OIG will require personal certifications by Board members assuring the Compliance Program’s effectiveness. These provisions place a heavy personal burden on Boards. To ensure that Boards are attentive to this responsibility, the OIG may require the Board to engage a Compliance Expert. Compliance Experts assist Boards in meeting their obligations and the Expert’s report is made part of each Annual Report filing. Furthermore, the CIAs often include a stipulated penalty for non-compliance with deadlines, as well as $50,000 penalties for each false certification that may also implicate the False Claims Act.
For over 20 years, the OIG has expressed the need for a “top-down” Compliance Program starting at the Board level. The OIG has issued several white papers such as the “Practical Guidance for Health Care Governing Boards on Compliance Oversight”, emphasizing that Boards will be held more accountable for proper oversight of compliance. CIAs now include the language from these pronouncements about Board obligations and the use of Compliance Experts.
Board best practice tips to consider include the following:
- Determine Board best practices by reviewing OIG white papers and new CIAs;
- Educate the Board on their fiduciary obligations and the personal consequences of failing to meet these requirements;
- Suggest that the Board structure include a “compliance literate” individual who knows the appropriate questions for assessing program effectiveness; and
- Provide the Board with solid evidence concerning the operation of the Compliance Program, such as an evaluation and recommendations for improvement from a Compliance Expert.