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McNulty who?

In this case, the McNulty being referred to is not a who, but a what: the McNulty Memorandum. Healthcare compliance professionals will undoubtedly being hearing a lot more about it in the near future.

In fact, South Florida's own Gabriel L. Imperato, managing partner at the statewide Broad and Cassel law firm, will be discussing the McNulty Memorandum, among other matters, at the Health Care Compliance Association's (HCCA) annual conference. This year's HCCA Compliance Institute is being held in Chicago, April 22-25.

According to "A Review of the McNulty Memorandum," published in HCCA Compliance Today's February 2007 issue, authors Cheryl Wagonhurst and Rick Rifenbark assert the McNulty Memorandum serves as an important reminder that compliance programs are of little value if they are simply "paper programs."

The McNulty Memorandum provides guidance to prosecutors who are investigating whether to bring criminal charges against corporations. Prosecutors are required to consider nine factors, one of which is "the existence and adequacy of the corporation's pre-existing compliance program." However, in order for a compliance program to positively influence a prosecutor's decision whether to criminally prosecute a corporation, the McNulty Memorandum emphasizes that compliance programs must be active programs with dedicated resources that detect and deter violations of law.

The McNulty Memorandum cites several cases that emphasize that corporations may not avoid criminal liability for the actions of their employees simply because a compliance program is in place that prohibits violations of law. A key consideration is whether management and the board of directors support a corporation's compliance program.

Although the McNulty Memorandum acknowledges that the Department of Justice has no formal guidelines for corporate compliance programs, it does provide certain questions that prosecutors should ask when assessing a corporation's compliance program.

Corporations and compliance officers should use the McNulty Memorandum as a reminder that compliance programs are only effective if they are actually used and become fully integrated into the corporation's culture. A corporation should carefully review its compliance program and procedures to assess how they match up with the various items discussed in the McNulty Memorandum.
The McNulty Memorandum prompts prosecutors to consider whether:
· Boards of directors exercise independent judgment over corporate management's actions;
· Internal audit functions are conducted at a sufficiently high level to ensure independence and accuracy; and
· Boards of directors receive sufficient information to exercise independent judgment and stay informed regarding compliance activities.

Simply stated, a corporation's board of directors should be involved in assessing the corporation's compliance with the law and should not simply rubber stamp management's actions. Compliance officers are well advised to evaluate the role of the corporation's board of directors in their compliance programs with an eye towards the points raised in the McNulty Memorandum.

A corporation should evaluate the existing structure and authority for its compliance program and consider whether the program only exists on paper in the form of a compliance manual or handbook or whether it is a program that is appropriately staffed, funded and fully supported from the top of the organization. This involves looking at the current job description of the compliance officer and making a decision as to whether the position should be a full-time employee rather than one combined with another role or job duties in the organization.

In addition, the corporation should consider how the various departments and individuals within the corporation could serve to support the overall compliance program. Once the corporation has determined the type of structure that it requires to implement its program, then it should be prepared to devote the necessary funding to support that structure.

A corporation should also consider developing a charter for the compliance program that is approved by the board of directors and senior management of the corporation to ensure that the program has full support and authority. The corporation should develop an annual compliance work plan that serves to identify the top risk areas for the corporation and articulates how each risk will be appropriately addressed through policy and procedure development and enforcement, training, monitoring and auditing.

Finally, the corporation should do an annual assessment of its compliance program to ensure that it is a living, breathing, functional program. One way to ensure that a compliance program is not just a program exquisitely detailed on paper is to consider what measures are in place to test the program's effectiveness. Examples of such measures include questionnaires to employees regarding their knowledge of the compliance program's features, periodic audits of billing and collections or other identified high-risk areas and use of outside consultants to assess the strengths and weaknesses of the compliance program.

Compliance officers should also carefully document other items that demonstrate that their compliance program is publicized and effective, such as documenting attendance at training presentations, hotline complaints and appropriate follow-up, any governmental disclosures, instances where employees are disciplined for compliance violations and where appropriate, the results of any internal investigations.

Over the years, HCCA's Compliance Institute has become the standard for compliance education. Its annual comprehensive program features an expert faculty to provide the latest regulatory and enforcement information, as well as in-depth compliance "how to" information. This year, special tracks – HIPAA, Quality of Care, Research/IRB, Physician Compliance Issues, Legal and Regulatory & Auditing and Monitoring – are being offered to meet the diverse information needs of healthcare compliance professionals. New this year: advanced discussion groups. These sessions, facilitated by industry experts, will cover advanced compliance concepts. Also available and popular with past participants: industry immersion sessions, designed to provide in-depth information and knowledge on specific healthcare industry segments.

The Healthcare Compliance Certification Board will offer its certification exam on-site, with preregistration required. In addition, continuing education credits are available for many professionals.

Typically, attendees are healthcare compliance officers and risk managers, healthcare senior executives and leaders, including CEOs and CFOs in hospitals, medical groups, long-term care organizations and health plans, but many physicians, healthcare consultants, attorneys and other healthcare professionals also attend.

Imperato, who executed the planning and organization of HCAA's legal track, will serve as a panel moderator for a program that will discuss the McNulty Memorandum and other corporate liability and governance issues. Imperato is board-certified as a specialist in health law by the Florida Bar and was recognized in "The Best Lawyers in America®," a legal guide published by Woodward/White. He is a member of the HCCA Board of Directors and has received the HCAA Health Care Compliance certification.

For more information on HCCA and this year's Compliance Institute: http://www.hcca-info.org.

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