In this episode, I visit with Jonathan Marks, a partner at Baker & Tilly.  This podcast part of my Land of 1000 podcasts celebration. In this special series of podcasts I am reviewing the growth, maturation and development of topics over the past five years. Marks visits with my about some of the key developments in the field in forensic investigation and compliance from his perspective as an internal auditor and forensic investigator. Some of the key highlights are:

  • The expanding role of the Board and the C-Suite in forensic investigations.
  • How did the Justice Department’s requirement for a root cause analysis change the dynamics?
  • What do compliance professionals need to understand about forensic auditing in a best practices compliance program.
  • How the role(s) of the forensic auditor have expanded.
  • Internal controls must do more than exist, they must be effective.
  • What is a control?
  • Forensic audit is no longer just about the numbers.
  • How the behavioral aspects of fraud are becoming more prevalent in anti-corruption compliance.

Jonathan Marks can be reached at jonathanmarks@bakertilly.com.

This week, I am running a special five-part podcast series, Monitoring in Healthcare. In it, I take a deep dive into healthcare monitoring and how the pro-active use of a healthcare monitor can positively impact all stakeholders in the healthcare industry. The series is sponsored by Affiliated Monitors, Inc. One of the lessons that I learned in researching and producing the series is that while healthcare monitoring has its own unique challenges, there are many techniques, strategies and tools which have wider application to commercial and financial entities. Even if you are not in healthcare, checking out the series could provide you with some new innovative approaches and best practices for the enhancement of your corporate compliance program.

In the healthcare space, when someone makes a complaint to a licensing board, the complaint is investigated, and the licensing board finds, among other things, that the practitioner’s patient records lack basic elements: for example, adequate notes about treatments. Most of these licensing boards have regulations that say what minimally should be included in patient records. And this is the standard you would hope that any kind of a medical provider is recording in writing. This is critical  for a patient’s medical care going forward. A monitor can be an excellent option as for the healthcare provider to continue to practice while providing prompt feedback to the agency about whether the healthcare provider is making promised changes. This is because a straight suspension may hit the pocketbook without helping the provider make meaningful change. An equal if not greater benefit to the healthcare provider as that the monitor can provide tailored advice about how to bring the practice up to professional standards.

In the opioid crisis, a monitor to track prescriptions and prescribers of opioids and other drugs,  as part of a multi-pronged approach to the opioid abuse issue. A monitor can help a provider to put policies and procedures in place to (a) assess the underlying need for pain medication; (b) determine whether someone is actually taking the medications; (c) refer to other specialists for supplemental care: physical therapy, acupuncture, pain clinics; and (d) appropriately terminate care of patients who appear to be getting prescriptions primarily to re-sell the pills.

Yet the benefits do not end there as monitoring, as part of settlement agreement, could require the provider to reduce the number of pain patients and the quantity of pills prescribed over a certain period. A monitor can keep the regulators informed as most state agencies do not have the staff available to track compliance with the details of such an agreement. Independent monitoring is paid for by the licensee. Such use of a monitor also works to protect the public by bringing the professional in line with national standards for assessment, treatment and follow-up of pain patients. Finally, using a monitor can allow the provider to remain open and demonstrate their commitment to improved practice. Healthcare providers are quick learners and, in some cases, putting a structured program in place is a relief.

Another scenario from the healthcare industry where employing a monitor can inform a corporate compliance program is around hospital conversions. Many states have laws in place to protect the public’s interest when a not-for-profit hospital is sold to a for-profit entity. The state’s Attorney General or Department of Health may impose conditions on the new entity, in some cases to prevent it from simply flipping the hospital and extracting the dollar value of the goodwill that was invested by the state when it was not-for-profit.

Hospitals started by charitable or religious organizations may have been acquired or approached by for-profit entities who might be interested in acquiring them. States are concerned that they simply want these healthcare institutions snapped up, so the states want to make sure that the interest of the public are really protected. There are multiple interests that the public has when a not-for-profit entity is bought by a for-profit entity; including things like making sure that the for-profit entity will exist as a healthcare provider for a reasonable period of time, they are good neighbors, that they pay taxes and if there were charities that were in place, those charities continue.

When such a conversion occurs, the purchaser may agree to a wide variety of conditions, such maintaining certain services, making capital improvements, expanding in certain areas, meeting certain public health standards (for immunizations, treatment standards, coordination of care) and addressing certain public health priorities, such as opioid overdose risks or area-specific issues like Lyme disease. An monitor may engage in some or all of the following: review of money to be sure it is spent according to conditions; review of policies, procedures, contracts, training materials; review of assignment of assets,  e.g. donations that were earmarked for a purpose that is no longer possible; visits to the hospital to see if certain programs are functioning, to see if services are being offered as agreed-upon; interviews with staff to see how medical requirements are being met; and review of charts to see whether processes are being followed. In short there are wide variety of conditions which be in place or which the state or regulators want visibility into and a monitor can provide that visibility.

A monitor can also consider other factors, which may seem to less healthcare related but could impact a conversion. There might be an agreement for capital improvements, for example, there might be total dollar amounts to be invested, dollar amounts per year or there might be dollar amounts over a span of time. It could all depend on what the long-term plans are for the acquirer. As an acquirer typically does not make a lot of capital improvements in the first year, a regulator would need a monitor in place for some period of time to make sure the investments are made and  the money spent is actually going on capital improvements. There could be ancillary agreements such as participation in and sponsoring of community activities or education, all of which need to be monitored.

A monitor can drill down into whether the healthcare provider put out advertisements about those kinds of things and see if the public and the person or persons involved actually attended them. Another area often seen is around charitable assets, where a donor may have made a bequeath to a hospital for a specific purpose. If the specific purpose is no longer available; for instance, if it was for a hospital wing that is getting closed down and not being used for the kind of care that it was set up for, those assets might be reassigned.

These examples from healthcare clearly demonstrate how using an independent monitor can facilitate not only compliance with regulations and regulatory issues but with a much wider variety of scenarios. The hospital conversion example clearly informs any merger and acquisition situation or even a business expansion. As a compliance professional, you are only limited by your imagination. By using imagination and innovation, you can tackle many issues more efficiently, with a lower overall cost and in a manner,  which should satisfy a wide variety of stakeholders; from the government to your Board of Directors to shareholders and most significantly to your company’s bottom line.

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, 2018

In this episode, Jay Rosen and myself take a look at some of the top compliance stories over the past week, including:

  1. Justice Department Escalates Inquiry on Global Sports Corruption. Rebecca Ruiz reports in the New York Times. Andy Spalding comments in the FCPA Blog.
  2. On his Conflicts of Interest Blog, Jeff Kaplan discusses a new review of the Wells Fargo scandal.
  3. COSO gets and new chairman and may consider internal controls guidance. Tammy Whitehouse reports in Compliance Week (sub req’d). Matt Kelly details in Radical Compliance.
  4. Jonathan Marks considers whether the roles of the GC and CCO should be split, in his Board and Fraud
  5. US becomes second largest home of tax havens (although Trump says we’re No. 1). Sam Rubenfeld reports in the Wall Street Journal Risk and Compliance Report. The issue is impacting home sales in Houston. See article in Houston Chronicle.
  6. Ben DiPietro considers when a company should use its CEO as a point spokesperson during a crisis in the WSJ Risk and Compliance Report.
  7. An article in GIR reviews SFO Director David Green’s called for the UK defence bar to embrace artificial intelligence and said the authority will use the newly-enacted unexplained wealth orders in corruption case. See article by Waithera Junghae (sub req’d).
  8. Tom announces presales of his next book, the Complete Compliance Handbook, which will be published by Compliance Week in April 2018. You can find out more on his website by clicking here.
  9. Join Tom and Jonathan Marks at his next Compliance Master Class, sponsored by Marcum LLP. It will be held on February 12 & 13 at Marcum’s offices in Miami, FL. More information or a copy of the agenda, or to register, will be available on my website, FCPA Compliance Report or at Marcum LLP.
  10. Tom announces his new podcast series Countdown to GDPR with Jonathan Armstrong. It will be a monthly series for the US compliance practitioner about how to prepare for the upcoming go live of GDPR in May, 2018.
  11. Tom and Jay announce their Super Bowl predictions.

In this episode I visit with Jonathan Armstrong on his views on the new DOJ Evaluation of Corporate Compliance Programs. Armstrong provides a detailed analysis of some of the key differences between how compliance is operationalized in the US as opposed to the UK and EU countries. He explains how the enhanced requirements for root cause analysis, risk assessments and investigations and the supplemented requirements to tie back into the ongoing compliance monitoring and updating, could run afoul of UK and EU data protection and data privacy requirements.  He also considers what a non-US company, subject to the FCPA what should look to as a best practices compliance program to best protect the organization. Finally explores just how far does all of this go? He provides on statistic that puts a huge bow on the difficulties going forward.

For the Cordery Compliance article see the following, US Department of Justice on Evaluation of Corporate Compliance : how does it compare to UK Bribery Act 2010?

In this episode, Jay and I have a wide-ranging discussion on why good compliance and is good for business. We discuss:

  1. LRN Ethics and Compliance Program Effectiveness Report. Click here for Report.
  2. Ethisphere’s 2017 World’s Most Ethical Companies. Click here for Report.
  3. Why good compliance is good for business. See Tom’s blog post.
  4. Women in compliance: A key to organizational diversity. See article in the FCPA Blog.
  5. ECI Podcast: Engaging With Your Monitor: Best Practices from ECI’s Independent Monitor Benchmarking Group. To listen to the podcast, click here.
  6. Jay previews his weekend report.
  7. Tom previews a presentation he will give with Jenny O’Brien and Roy Snell at the SCCE European Ethics and Compliance Institute in AprilJay previews a presentation at the same event by Eric Feldman of Affiliated Monitors. For more information on the event, check it out by clicking here.

Jay Rosen new contact information:

Jay Rosen, CCEP

Vice President, Business Development

Monitoring Specialist

Affiliated Monitors, Inc.

Mobile (310) 729-6746

Toll Free (866)-201-0903

JRosen@affiliatedmonitors.com