Recent enforcement actions and public comments by enforcement officials make it clear that parties who are responsible for health care fraud enforcement plan, to focus more on the Responsible Corporate Officer Doctrines (“RCO Doctrine”) as a tool to fight health care fraud. Comments by Wisconsin Bar Health Law Seminar are just one example of the new focus on the RCO Doctrine.
The RCO Doctrine was derived from the United States Supreme Court’s decision of U.S. v. Park. The RCO Doctrine permits corporate officers to be held personally responsible for the criminal acts committed at the corporate level. The RCO Doctrine is a draconian measure that can hold corporate officers liable as long as they were in a position to prevent a legal violation. Park permits application of the doctrine even in cases where the corporate officer does not have actual knowledge of, or has not actually participated in, the alleged violation.
Health care is one area where the RCO Doctrine is being increasingly used as an enforcement tool. The doctrine is being actively used to pursue corporate officers who are in a position of authority regarding the alleged violation. Some cases have even upheld the application of the RCO Doctrine against a corporate officer even when the corporation itself is acquitted of the charges.
The RCO Doctrine can be used against virtually any corporate officer, including the CEO, president, vice president, secretary, treasurer, general counsel or virtually any other management-level functionary. Health care is particularly susceptible to the use of the RCO Doctrine. In many cases, enforcement officials do not want to take action that could adversely affect availability of health care services to the community. This causes officials to focus on individuals in management. In fact, some officials take the position that where health care fraud occurs, someone must be criminally charged. This is a growing enforcement trend that makes health care management particularly vulnerable. In fact, some recent cases have gone so far as to charge legal counsel with criminal violations, raising issues regarding the role of in-house legal counsel in compliance roles.
The emergence of the RCO Doctrine places a spotlight on the duty of corporate officers to be certain that systems are in place to ensure that legal violations do not occur. Systems should also focus on promptly remedying compliance concerns before they spin out of control.
Health care organizations are actively using compliance programs to minimize compliance risk. These programs should be a continued focus of health care organizations as a method to reduce legal risk. The programs should be flexible to address areas of risk that apply to the specific organization. Policy changes, training and actions should be taken where areas of risk are identified.
The Affordable Care Act creates mandatory compliance program obligations on most health care organizations. Organizations that receive $5 million or more of Medicaid revenues must adopt most elements of a compliance program. Nursing homes will need to certify that they have compliance programs in place by 2013, with other provider types following thereafter. Many institutions have already implemented compliance policies, but should take the opportunity to audit their programs for effectiveness. Smaller providers such as physician practices will need to adopt compliance programs for the first time in response to the Affordable Care Act.
A well-designed, effective compliance program may be your best defense to the possible application of the RCO Doctrine, in view of the increased focus on that doctrine by law enforcement. When it comes to the RCO Doctrine, it is what you do not know that can hurt you. For this reason, it is critical to develop compliance systems to ferret out possible problems and solve them before they grow into larger problems.