March 3, 2017
The Fraud Section of the U.S. Department of Justice published the first formal guidance since the new administration took office. It includes a list of sample questions used to evaluate Corporate Compliance Program effectiveness: Evaluation of Corporate Compliance Programs.
Prosecution of Business Organizations and the “Filip Factors”
The DOJ’s guidelines for charging corporations – the “Principles of Federal Prosecution of Business Organizations” reviews ten factors, the “Filip Factors” considered by federal prosecutors when assessing corporate wrongdoing. These factors include “the existence and effectiveness of the corporation’s pre-existing compliance program” as well as the corporation’s efforts “to implement an effective corporate compliance program or to improve an existing one.”
How Does Your Compliance Program Measure Up?
The program guidance includes references to existing resources such as the U.S. sentencing guidelines, and reviews the following areas in the form of 119 questions which may be used to analyze the effectiveness of a Compliance Program:
- Analysis and Remediation of Underlying Conduct
- Senior and Middle Management
- Autonomy and Resources
- Policies and Procedures
- Risk Assessment
- Training and Communications
- Confidential Reporting and Investigation
- Incentives and Disciplinary Measures
- Continuous Improvement, Periodic Testing and Review
- Third-Party Management
- Mergers and Acquisitions
Policies and procedures are critical to the function of a compliance program, and the compliance program guidance emphasizes this standard. Prosecutors are to consider how well they are:
- Individualized to a company’s specific risk profile
- Effectively implemented and communicated
- Evaluated for usefulness including the “operational integration” of compliance policies and procedures, for example in the application of reimbursement accuracy controls that should have helped detect or prevent misconduct.
Other questions posed in the guidance include:
- How has the compliance function compared with other strategic functions in the company in terms of stature, compensation levels, rank/title, reporting line, resources, and access to key decision-makers?
- Are there signs of risk awareness? What methodology was used to identify, analyze and address particular risks? What is the scope of the company’s risk assessment?
Proactive assists providers through 3rd party risk assessment, auditing of high risk areas, and facility specific policy and procedure development. Our team is experienced in assisting with implementation of effective Compliance Programs based on the 7 Compliance Program Elements and government guidance. We offer SNF focused and Therapy Contract Company Compliance Program implementation assistance, as well as Interim Compliance Officer services. Contact us to learn more.