Fostering a culture of compliance in 2018 and beyond
Sean Weiss, CPC, CPC-P, CPMA, CCP-P, CMCO, ACS-EM
Partner, VP and Chief Compliance Officer
This year (2018) healthcare organizations must focus on creating a culture of compliance to ensure effectiveness and efficiency. Focusing only on “compliance” leaves practices and hospitals exposed to areas of liability, often far more with far greater risks and consequences than they could imagine or be willing to tolerate.
In 2018 you will need to walk through your compliance program and determine how to shift from a compliance-only approach to a risk-based approach. This will require your compliance team to focus on areas often ignored; those that leave your compliance program exposed to probes by government agencies and their investigators. Regardless of the size of your organization, this shift in thinking and in carrying out compliance functions is a must in the modern regulatory era, one characterized by complex, often unclear, yet ever-changing rules and guidelines.
To set yourself on the right course of how to approach compliance you have to first define it. Keep in mind we are talking about compliance within healthcare, which is different than any other industry, so when we talk about health care compliance it is important to understand that it is the process of following rules, regulations, and laws that relate to healthcare practices. Healthcare organizations are held to very strict standards of regulations and laws and violating these can result in lawsuits, significant fines, loss of licenses and exclusion from the Federal and State payer programs.
The “Filip Factors” and how the U.S. Department of Justice (DoJ) applies them dates back to the tenure of former Deputy Attorney General Mark Filip, who in 2008 set forth a series of guidelines on whether corporations under investigation should be charged criminally. The guidelines delineate several factors that focus significantly on whether a corporation has been “cooperative” during the course of a government investigation. Those not found to be cooperative are said to have engaged in corporate misbehavior. The question is, can a corporation really misbehave? Its officers and employees certainly can, which is what the Filip Factors are referring to: their actions or in some cases inaction. According to the U.S. Attorneys’ Manual (USAM), the level of cooperation should be used as a guide on whether to indict the corporation or strike a plea agreement.
Let’s review the actual individual Filip Factors as listed in the USAM:
- The nature and seriousness of the offense, including the risk of harm to the public, and applicable policies and priorities, if any, governing the prosecution of corporations for particular categories of crime (see USAM 9-28.400);
- The pervasiveness of wrongdoing within the corporation, including the complicity in, or condoning of, the wrongdoing by corporate management (see USAM 9-28.500);
- The corporation’s history of similar misconduct, including prior criminal, civil and regulatory enforcement actions against it (see USAM 9-28.600);
- The corporation’s willingness to cooperate in the investigation of its agents (see USAM 9-28.700);
- The existence and effectiveness of the corporation’s pre-existing compliance program (see USAM 9-28.800);
- The corporation’s timely and voluntary disclosure of wrongdoing (see USAM 9-28.900);
- The corporation’s remedial actions, including any efforts to implement an effective corporate compliance program or to improve an existing one, to replace responsible management, to discipline or terminate wrongdoers, to pay restitution, and to cooperate with relevant government agencies (see USAM 9-28.1000);
- The collateral consequences, including whether there is disproportionate harm to shareholders, pension holders, employees, and others not proven personally culpable, as well as impact on the public arising from the prosecution (see USAM 9-28.1100);
- The adequacy of remedies such as civil or regulatory enforcement actions (see USAM 9-28.1200); and
- The adequacy of the prosecution of individuals responsible for the corporation’s malfeasance (see USAM 9-28.1300).
There are also 119 sample questions listed in the “Evaluation of Corporate Compliance Programs” which are span topics ranging from “analysis and remediation of underlying conduct” to “risk assessment” and “confidential reporting and investigation.”
A culture of compliance
The above section is literally the blueprint followed by the DoJ when it must make decisions on whether to charge companies or negotiate with them. This detailed guidance is particularly valuable for healthcare organizations in light of the agency’s heightened efforts to prosecute Medicare Advantage plans for fraudulent reporting under the False Claims Act.
By knowing how the DoJ thinks – based on the Filip Factors – you can structure your compliance program in a way that goes beyond simply checking boxes. You can foster a culture of compliance that will always show your government looks at you and what their position will be during an investigation as to whether they will structure a plea agreement or proceed with prosecuting the case.
Why do hundreds of organizations turn to DoctorsManagement for their regulatory compliance needs?
Comprehensive and customizable – made up of a suite of complimentary services to help ensure that your policies and procedures are properly developed, based on the unique needs of your organization, and implemented in a way that sets the stage for success and supports you in the on-going management of your compliance management and risk reduction efforts.
A track record of success – having worked with all sizes of facilities; from the single-physician practice to systems with hundreds of physicians in every specialty, you’ll find that a custom compliance plan can help you save time, money and potentially reduce liability.
Synergy – DoctorsManagement is a full-service healthcare consultancy firm. The many departments within our firm work together to help clients rise above the complexities faced by today’s healthcare professionals. As a result, you receive quality solutions from a team of individuals who are current on every aspect of the business of medicine.