Jay Rosen discusses the combination of compliance and ethics programs with independent monitoring, as well as two DOJ memos that have been key in the selection and application of independent monitors.
The marriage of independent monitors and compliance and ethics (C&E) programs has been facilitated through the evolution away from strict regulatory compliance to a more ethics-based compliance. This has been one of the most significant advancements in independent monitors over the history of AMI. Early on, the company had independent monitorships in the health care industry around such issues as billing and coding. From there, as the focus of regulators expanded, AMI began to address other issues, such as codes of conduct and conflicts of interest.
Thus, we were well-suited to move into a more direct, ethics-based compliance independent monitorship as the first decade progressed.
In the late part of the past decade, AMI began to move into more Department of Defense (DOD) independent monitorships around suspension and debarment. Suspension and debarment officials (SDOs) in the DOD were very much focused on the ethics side of compliance in the oversight of companies going through the suspension and debarment process. Administratively, these SDOs would use the suspension and debarment rules to have companies demonstrate they met the requirement under the applicable Federal Acquisition Regulation (FAR) and that they were presently responsible contractors. In the eyes of many, “presently responsible” included ethical considerations.
Ethical considerations included whether a company had installed a code of ethics, whether there was training on a C&E program and whether there was a disciplinary process and investigative tools that included a reporting hotline.
DiCianni said, “we were beginning to see lots of different agencies picking up on the elements of a C&E program. It was then picked up by other government officials and other federal regulators. Now it has become more of a norm.”
This led to quite a bit of monitoring not just focused on legal compliance or regulatory compliance, but now combining all of the elements of ethics and codes of C&E requirements.
DiCianni said that over the life of AMI, there have been two memos released by the Department of Justice (DOJ) that have directly impacted the selection of independent monitors and their application. The first was the Morford Memo from the DOJ, released in 2008. In this memo, which was particularly focused on the DOJ’s use of monitors but contained principles for much broader application, the selection criteria for independent monitors was addressed, including the need for subject matter expertise and independence and integrity of the monitor.
The second was the Benczkowski Memo, released in 2018. The Benczkowski Memo discusses limiting the use of monitors to only certain situations where they might be warranted – specifically where the company does not have an effective C&E program. As an alternative, it gives a company the incentive to strengthen their programs.
AMI is seeing many companies utilizing third parties to evaluate their C&E programs, compelling them to strengthen those programs so that if they are ever confronted with an investigation or a self-disclosure to the DOJ, the company can demonstrate it has a strong C&E program and perhaps get special consideration.
As DiCianni noted, this type of proactive work is “really a good part of our work today – helping companies evaluate their programs to see if they have certain weaknesses.” DiCianni sees the Benczkowski Memo as another impetus for AMI “to get out there and let people and companies know that you don’t have to do it on your own. There are entities out there that can help them strengthen their programs.” He concluded by stating, “I think each memo in its own way had some impact on us.”
Please join me next week for Part 5 of this series as we explore Vin DiCianni’s final reflections on 15 years of excellence in monitoring.
In case you missed the earlier installments of this ongoing series, please see the links below.