Reprinted with permission from birmingham medical news (December 2022).
On Sept. 15, 2022, Deputy Attorney General Lisa Monaco will focus on individual accountability, tighten requirements for corporate co-operation credits based on past conduct, and make significant changes to the Department of Justice’s (DOJ) Corporate Crime Enforcement Policy. announced an update. Organizations that self-report misconduct (Deputy Attorney General Lisa O. Monaco makes remarks on corporate criminal enforcement. OPA | Department of Justice, Sept. 15, 2022). The new policy means the department will take a more aggressive approach to corporate criminal enforcement, including enforcement against individuals, and health care providers should be mindful of this increased scrutiny.
Individual accountability and self-reporting
Individual accountability has been described by the department as a “top priority,” and the policy change will facilitate investigations and prosecutions of individuals involved in misconduct, as well as responsible healthcare providers. is intended for Under this new enforcement policy, providers are expected to fully disclose to the department all relevant information related to responsible individual and corporate misconduct. Providers who fail to report in a timely manner and who do not cooperate fully with the department are more likely to lose their ability to secure a Non-Prosecution Agreement (NPA) or Deferred Prosecution Agreement (DPA). The NPA and DPA provide governments with the tools to reach settlement agreements with providers. NPAs are generally not prosecuted against the provider and do not require the provider to admit liability. A DPA is a contract that requires the provider to allow basic conduct if the provider meets certain conditions (which may include probation, restitution, community service, or other relevant conditions). , the government agrees to dismiss the charges. The obvious advantage of non-prosecution and deferred prosecution is avoidance of conviction.
Voluntary disclosure of corporate and individual misconduct has been stated by the State Department as “the clearest avenue for a corporation to avoid a guilty plea or prosecution,” but such action is It should be carefully considered because it alerts the State Department to actions it may not otherwise take. identification. In the absence of aggravating factors, the department will not seek a guilty plea if the provider voluntarily and timely self-reports, cooperates fully, and corrects the conduct. Be aware that some medical laws require reporting to federal and state medical programs and repayment of overpayments, and failure to do so may result in sanctions under the Federal False Claims Act . The department made it clear that it supports and rewards providers who disclose wrongdoing rather than cover up or downplay their mistakes. And we need to sincerely cooperate and improve the situation. This includes naming individuals suspected of wrongdoing, linking compensation to compliance, and implementing policies to reclaim compensation for those involved in wrongdoing.
The DOJ’s focus on “moving faster” is likely to accelerate the pace of health-related fraud investigations, and, in some cases, prevent providers from committing crimes before they can benefit from a full internal investigation. You may be forced to deal with decisions about the relevance of conduct. Involving experienced attorneys early in the process can help navigate cooperation decisions, negotiate cooperation credits in advance, and ensure additional protections, while conducting robust internal investigations into fraudulent activity. It is important.
cheating history
The Department of Justice’s Corporate Enforcement Policy also includes details on how previous misconduct will be evaluated by prosecutors. The department will consider fraud that has occurred within the last ten years, especially fraud involving the same person or manager. In evaluating whether to prosecute a provider or individual, prosecutors consider the facts and circumstances surrounding previous misconduct and whether the conduct reflects broader cultural or compliance weaknesses. increase. As a practical matter, when prosecutors need to consider an individual’s criminal record, the Department of Health treats health care providers and individual providers in the same way the justice system treats individuals. Habitual corporate criminals face more serious consequences, especially for failed reforms. Therefore, a robust and effective corporate compliance program is essential to avoid systemic compliance issues.
Elements of a Strong Corporate Healthcare Compliance Program
- Written policies, procedures and standards of conduct — Your compliance program should include clearly defined policies and expectations that are publicly available to all employees. Your policy must include an affirmative commitment to comply with all applicable state, federal, and regulatory laws.
- Appointment of Compliance Officer or Compliance Committee — A compliance program should have a dedicated compliance officer or compliance committee to oversee policy implementation and enforcement. Compliance officers and/or committees must report directly to senior management.
- effective training — Providers must ensure that all employees are properly trained in compliance. This should include regular retraining for all employees, not just new hires.
- open a line of communication — Employees at all levels of the organization should have the opportunity to ask questions, seek clarification, raise concerns, and report possible non-compliance without fear of reprisal.
- risk assessment — Implementation of a system to conduct internal audits of the compliance program to measure program effectiveness. Audits may include annual audits and/or periodic monitoring to ensure regulatory compliance and the identification of compliance risks.
- execution — Appropriate disciplinary action must be applied in a clear written policy to those who do not comply with program expectations and policies.
- corrective action — When significant compliance risks or vulnerabilities are discovered through reported incidents, compliance violations, or internal reviews, the compliance committee must take timely and decisive action to mitigate the risk of non-compliance.
Following recent Departmental policies on corporate enforcement, healthcare providers should assess the effectiveness of corporate compliance programs. The Department of Justice’s new focus on compliance also provides providers, particularly general counsel and/or chief compliance officers, with justification to increase investment in corporate compliance programs. Investigators evaluate a provider’s compliance program, but the lack of an “effective” program can hinder a successful resolution.
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