Kusserow on Compliance: Board members must meet their compliance obligations

Both the DOJ and OIG have been moving to make board members more accountable for meeting fiduciary duties and obligations in overseeing the Compliance Program. The OIG has long called for a top-down compliance program, beginning at the board level. The OIG and American Health Lawyers Association published “Corporate Responsibility and Corporate Compliance: A resource for Health Care Boards of Directors” that sets forth how these obligations should be met. These standards are being included in Corporate Integrity Agreements that mandate personal attestations from board members regarding the effectiveness of the Compliance Program.

Traditionally, Outside Directors were the primary watchdogs of any board that oversaw of the audit, compliance, and compensation committees, rather than directors from the management of the enterprise. An Independent Director should not be affiliated with the organization as an adviser, auditor or consultant or have personal services contract(s) with the Company. One type of Independent Director that should be on the board is one that is also “compliance literate,” meaning having intimate knowledge of compliance as result of having been a compliance officer, an attorney who has dealt with compliance issues, experience as a compliance consultant, etc. They should have the requisite knowledge and skills to be able to critically evaluate the information and needs relating to the Compliance Program. If not already done, it is advisable for Compliance Officers to work on educating the board on their fiduciary obligations and the merits of having a compliance literate board member.


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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