Kusserow on Compliance: OIG focuses on Board obligations in corporate integrity agreements

For over twenty years, the HHS Office of Inspector General (OIG) has made every effort to inform the health care sector about its concerns and expectations regarding compliance with all applicable laws and regulations. It publishes compliance guidance documents, testifies before Congress on its findings, publishes Semi-Annual Reports on its activities, issues annual Work Plans, promulgates “Safe Harbors,” publishes Advisory Opinions to clarify its position regarding the Anti-Kickback Statute, negotiates Corporate Integrity Agreements (CIAs), produces Podcasts on compliance topics, and present at the American Health Lawyers Association (AHLA), Health Care Compliance Association (HCCA), and other conference forums.

Tom Herrmann, J.D., a retired OIG executive and experienced compliance consultant, makes the point that “Anyone wanting to understand the OIG current position on compliance has to go no further than reading several OIG ‘White Papers’ published with the AHLA that emphasize the growing position of holding boards accountable for proper oversight of compliance within their organizations. Among these documents were the ‘Integrated Approach to Corporate Compliance: A Resource for Boards of Directors’, ‘Corporate Responsibility and Corporate Compliance: A Resource for Health Care Boards of Directors’ and the most recent publication published a year ago, ‘Practical Guidance for Health Care Governing Boards on Compliance Oversight’. These documents clearly show how the OIG continues to evolve in their thinking, expectations and focus regarding board accountability for providing proper oversight of their organization’s compliance program. The Practical Guidance was particularly significant in providing insights of their reasoning why Boards should engage Compliance Experts, whether or not there is a CIA. I believe a close reading of this document is a must for compliance officers. It provides almost identical language about Boards’ use of Compliance Experts as they have in CIAs today.”

Steve Forman, a CPA with more than twenty years experience as a compliance officer, compliance consultant, and engagement as a Board Compliance Expert, noted that, “The OIG continues to learn, modify and enhance provisions, in the CIAs to increase oversight and accountability of those who agree to settlement terms. Compliance Officers will find these CIAs are worth reviewing for useful intelligence on what is considered best practices.  They have new and more stringent requirements with the increased use of certifications; mandates for Boards to engage a Compliance Expert and increase in role and oversight of Independent Review Organizations. They also include Board mandates to engage independent Compliance Expert to assist them in meeting their obligations of oversight of Compliance Program effectiveness and must include their Compliance Expert reports as part of each Annual Report filing”.

Carrie Kusserow, with 20 years experience as a compliance officer and consultant, sums up all this by noting, “The OIG has added more CIA requirements for holding executives, program managers, Compliance Officers, and boards personally responsible for compliance.  The introduction of new certifications in CIAs is a ‘game changer’ in that they place a heavier personal burden on Boards, executives, Compliance Officers. With my clients, it certainly has been a wake-up call, as they realize that improper certifications may result in severe penalties.  CIAs often include a stipulated penalty for each day they are out of compliance with deadlines and a $50,000 penalty for each false certification. Also, any false certification may implicate the False Claims Act”.

All three of the experts interview believe that Compliance Officers should brief their board on the increased focus on their oversight responsibilities that includes information from the ‘White Papers,’ as well as recent CIA mandates. All of this will better prepare them to meet their obligations.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

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Copyright © 2016 Strategic Management Services, LLC. Published with permission.