Over the past decade, the Office of Inspector General for the Department of Health and Human Services (OIG) has repeatedly emphasized the important role that Boards of Directors play in ensuring that their organizations have robust and effective compliance programs. At the same time, state and federal law enforcement agencies have shown a growing interest in the role of healthcare Boards when they investigate organizations for suspected healthcare fraud. For these reasons, it is critical for Boards to play an active role in the development and evaluation of their organization’s compliance programs.
Beginning in 2011, as part of a broader provider training initiative, the OIG began producing and publishing short educational podcasts designed to help healthcare organizations develop strong and effective compliance programs. Yesterday, the OIG released its latest podcast in the series entitled,
“A Toolkit for Health Care Boards.” Featuring new OIG Chief Counsel Greg Demske, the podcast is specifically designed to help Boards of healthcare companies fulfill their duty to ensure that their organizations have effective systems in place to promote and monitor compliance with healthcare laws and regulations.
While the message is consistent with the OIG’s historical views on a Board's duties, what is important and striking about the podcast released by the OIG yesterday, however, is that it offers very specific tips and practical suggestions to Boards, and poses a number of questions that the OIG believes Board members should be asking as they endeavor to exercise their oversight obligations with respect to compliance. Over the past decade, the OIG has published several corporate compliance resources, often working in conjunction with other organizations such as the American Health Lawyers Association. Those publications can be found on the OIG’s website and remain vitally important resources to organizations and their Boards. To paraphrase the iconic E.F. Hutton ad, “when the OIG speaks, people listen.”
The OIG expects Boards to be engaged and this podcast can be a useful starting place for new Boards or provide a way to refresh stale or stuck Boards. Perhaps more to the point, however, when the OIG “speaks,” it not only want providers to “listen,” it expects providers to listen. It is vitally important for Board members to understand the OIG’s views because when an organization comes under government scrutiny, it is critical that the organization be in a position to demonstrate that it has always taken seriously the guidance offered by the OIG. When organizations are able to demonstrate in clear, tangible ways that they have embraced OIG compliance guidance, it goes a long way towards establishing the good faith of the organization’s leadership. And of course, being able to demonstrate organizational commitment to compliance can be critical to avoiding or minimizing fines, penalties and monitoring agreements.
Some of the more interesting points made by Mr. Demske in the podcast, as well as some examples of the pointed questions that the OIG believes Boards should be asking as they endeavor to fulfill their oversight responsibilities, include:
Boards should be “engaged” and “active” when reviewing an organization’s compliance program, and should “exercise some degree of skepticism” when they do so.
The OIG’s point about remaining “skeptical” is important. Whenever the government evaluates an organization’s compliance program during the course of an investigation, it is usually done with a highly jaundiced eye. Clearly the OIG expects Boards to take a similar approach. At a minimum, the OIG expects Boards to do more than merely review what exists.
Boards should be “involved” in the compliance activities of the organizations they serve, and demonstrate a commitment to compliance by attending employee compliance training and speaking to staff about their compliance activities.
Most healthcare Boards are aware of and participate in Board-level compliance training programs on a regular basis. This is the first time, however, the OIG has expressed any view about the Board's involvement and review of a company’s employee compliance training.
Boards play a “key role” in evaluating the design and assessing the effectiveness of compliance programs. To fulfill that role, Boards should ask questions such as the following:
Does the compliance officer have “sufficient influence and prominence” within the organization? Does the compliance officer report to the Board?
Does the organization periodically re-assess its compliance goals? Does the Board hold key employees accountable?
What “metrics” are used to evaluate compliance, and how were those metrics selected?
How does the organization identify gaps in quality?
Is the organization “routinely” conducting internal compliance audits?
Is the organization’s response to problems sufficient? Does the organization “track” corrective action plans to ensure that problems have in fact been addressed?
Mr. Demske concludes the podcast with the following statement: “We hope that these questions will help you fulfill your important oversight responsibilities as a Board member.” For all the reasons noted above, it is imperative that every member of the Board of a healthcare organization take the OIG’s comments and suggestions to heart. Because when the OIG goes to the trouble of speaking, it expects every healthcare provider – and the Boards that serve them – to listen.
For additional information on the role of Boards of Directors in healthcare regulatory compliance, please contact Sheila Sawyer, Patsy Powers, Jennifer Weaver, Richard Westling or any member of the Waller Healthcare Government Investigations team at 800.487.6380.
The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations. As always, readers should consult a qualified attorney for specific legal guidance.