This past weekend I was lucky enough to catch the performance of King Lear with Glenda Jackson as the mad king. It was a magnificent production and if you have the chance to see, I would certainly urge you to do so. The production had many interesting features and interpretations which seemed to be great entrees into several compliance topics. Therefore, inspired by octogenarian Jackson and her performance, I have used King Lear as a deep dive into several compliance topics this week. Today, I want to discuss how Jackson, starring in the role of King Lear, added a new level of complexity, nuance and interpretation to the entire play.

Jackson is an octogenarian, the oldest person I have ever seen play Lear. Having seen my two parents age, I have some understanding that a person does not gain in stature, power or strength after they cross the 80-birthday mark. In other productions I have seen Lear roared and railed at Cordelia however, Jackson played it understated with nary a raised voice.

Even after the intermission, one of the most powerful scenes is when Lear carries of the lifeless body of Cordelia. Lear is in shock, bereaving and clearly quite mad. Yet to pull this off this scene requires an actress playing Cordelia to be of a size that the actor playing Lear can physically carry. Jackson is far too frail to do so. In this penultimate scene she sat on the stage with Cordelia’s head cradled in her lap, gently stroking her dead daughter’s hair. It was one of the most tender, loving and affectionate presentations I have ever seen in Lear.

Jackson’s performance as Lear added a shading of interpretation that certainly works. It also informs today’s review of the use of an independent integrity monitor not for a regulatory or enforcement purpose, not in connection with significant business transactions but in a proactive manner. This blog post is based upon a five-part podcast series I am presenting this week, with Jesse Caplan, Managing Director at Affiliated Monitors, Inc. (AMI); the sponsor of this week’s podcast series.

In the previous episodes, Caplan explained how healthcare organizations can benefit by having an independent compliance expert, a fresh set of eyes, to evaluate the organization’s compliance program. He has spoken at length about the emerging risks involved in opioid prescribing and how organizations can mitigate that risk by proactively assessing the prescribing practices of their physicians and physician extenders. He further explains how an independent integrity review can be helpful for organizations that may be facing actual or potential compliance issues.

The proactive use of an independent integrity monitor is becoming more pronounced. Caplanexplained that to do so can bring tremendous value to the organization. This is particularly true when a healthcare organization has reason to believe it has a compliance issue, and may be faced with a range of obligations and potential consequences that the organization and their counsel will likely seek to mitigate to the fullest extent possible. Caplan believes that by “using an independent compliance expert to review and assess the organization’s ethics and compliance program, make recommendations for remediation and improvement, and then offering to have that independent expert monitor the organization’s implementation of those remedial measures and improvements can be a useful tool in dealing with the government enforcement agency and convincing that agency to grant the organization some leniency in the sanctions that might otherwise be imposed.”

Moreover,using an independent integrity monitor can help a healthcare organization in dealing with regulators and enforcement agencies. Based upon his professional enforcement background, consistent with guidance from the Department of Justice (DOJ) and Centers for Medicare and Medicaid Services (CMS) Inspector General, he said, “the government expects and even demands, that healthcare organizations self-report certain types of compliance violations.” These include overpayments they may have received and false or fraudulent claims a healthcare organization may have billed to the government and certain types of privacy breaches.

Caplan noted,“The government also wants to see that the violation has been investigated and remediated and, just as importantly, that the violation is not indicative of a systematic failure of the organization’s ethics and compliance program. While the organization can and should investigate compliance violations using internal resources or outside counsel, using an independent compliance expert to assess the ethics and compliance program and culture, make recommendations, and then monitor implementation of those recommendations, provides a level of objectivity and credibility that is more likely to resonate with the government enforcers.”

Caplan provided a couple of examples where he made recommendations for improvement and remediation and monitored an organization’s implementation of those recommendations and remedial measures. By doing so, those healthcare providers (HCPs) and their counsel were able to convince the government enforcement agency that the company’s actions in addressing its deficiencies justified leniency. He stated, “the organization and its lawyers were able to say to the government: “you don’t have to take our word for it; you can rely on the assessment and monitoring of this independent, objective and credible monitoring firm.” In some of these cases, using the independent monitor likely meant the difference between the healthcare organization being permitted to continue to participate in government healthcare programs, as opposed to being excluded or having a license revoked.”

One of the key differences between healthcare regulators and others, such as anti-trust regulators, is that ensuring access to sufficient quality HCPs, whether they be behavioral HCPs or providers serving other vulnerable and under-served populations, is a constant challenge for healthcare policymakers. The bottom line is that excluding an important provider with significant compliance issues may address those compliance concerns, but it may raise a different problem and challenges when it means there are not sufficient accessible healthcare resources. Caplan believes “the better solution is to have healthcare providers with compliance issues remediate their problems and implement a sustainable and effective ethical compliance program so that the healthcare market has the benefit of high-quality, efficient, and transparent providers.” While the government may well be suspicious of healthcare participants who run afoul of their regulatory and compliance obligations, “engaging an independent compliance expert and monitor can provide the government with the tools to temper, if not overcome, those suspicions.”

I hope you have enjoyed my exploration of this most innovate and unique production of King Lear as well as the story of one of Shakespeare’s greatest tragedies to introduce a daily compliance topic this week. Join me tomorrow where conclude the series and consider the portrayal of my favorite character in all of Shakespeare—The Fool.

Join Jesse Caplan and myself for our 5-part exploration of emerging issues in healthcare compliance and monitoring this week.  The podcast is available on the FCPA Compliance ReportiTunesJDSupraPanoplyYouTubeSpotifyand Corporate Compliance Insights.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2019

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