CIAs are rapidly changing with additional provisions that include Board members
Upcoming webinar will address the full range of changes in CIAs
At the Health Care Compliance Association (HCCA) conference just concluding, the HHS Office of Inspector General (OIG) warned that in working out terms and conditions of a Corporate Integrity Agreement (CIA), the OIG will look for evidence of whether the Board was actively involved in oversight of the compliance program. If it determines that the Board was derelict in meeting its fiduciary responsibilities, the OIG will consider that a contributing factor that led to the need for government intervention. The weaker the Board oversight, the more stringent the requirements that are placed on the Board in the settlement agreement. In cases where the OIG finds that the Board has not been providing the proper oversight of the compliance program, the OIG will add mandates for personal certifications of Board members regarding the compliance program that includes mandated certifications by individual Board members on the effectiveness of the program. To ensure that Boards are attentive to this responsibility, the OIG may require the Board to engage a Compliance Expert to assist in meeting the Board’s obligations and the report made part of each Annual Report filing. These provisions place a heavy personal burden on Boards. Furthermore, 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 20 years, the OIG has been calling for a “top-down” compliance program, beginning at the Board level, that includes issuing White Papers, such as “Practical Guidance for Health Care Governing Boards on Compliance Oversight,” and emphasizing holding Boards more accountable for proper oversight of compliance within organizations. Language from these pronouncements about Board obligations and use of Compliance Experts is now included in CIAs.
Tips for Compliance Officers
- Review OIG “White Papers” and new CIAs to lean what the OIG considers as best practices for boards
- Educate and warn the Board on their fiduciary obligations and personal consequences for failing to meet them.
- Suggest the Board include someone who is “compliance literate” that knows what questions to be asked and assess program effectiveness (e.g., compliance officer experience or a compliance consultant).
- Provide the Board with solid evidence concerning the operation of the compliance program, such as engaging a Compliance Expert to assess and evaluate the program and providing the Board with evidence of an active program and identifying opportunities for improvement.
Register now to attend a free webinar on Thursday, April 6, 2017 titled “Compliance Accountability: Lessons Learned from Implementing Corporate Integrity Agreements” and presented by Thomas Herrmann, JD, former Chief of the Litigation Branch for the OIG and Appellate Judge for Medicare Appeals, along with Carrie Kusserow, MBA, CHC, CHPC, CCEP, who has 15 years’ experience as a compliance officer and consultant. Both are experts on compliance programs, as well as meeting the terms and obligations of Corporate Integrity Agreements.
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.
Copyright © 2017 Strategic Management Services, LLC. Published with permission.