Tag: Jesse Caplan

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Innovation in Compliance

Not Your Father’s Monitor-Part 4: Jesse Caplan on the Intersection of Antitrust and Healthcare Monitors


In October, Deputy Attorney General (DAG) Lisa O. Monaco gave a Keynote Address at ABA’s 36th National Institute on White Collar Crime (Monaco Speech). Monaco’s remarks should be studied by every compliance professional as they portend a very large change in the way the DOJ will utilize monitors going forward. Over this podcast series, sponsored by AMI we will consider why DAG Monaco’s remarks herald a new era for monitorships.
Over this podcast series we have considered Monaco’s remarks from a variety of perspectives. Bethany Hengsbach considered this change in monitorships from the white-collar enforcement and defense perspective. Mikhail Reider Gordon looked at global aspects of the new DOJ monitor’s focus. Cristina Revelo discussed how E&C assessments help drive more compliant companies. Vin DiCianni looks at where monitors and monitorships are going in 2022 and beyond. In this Episode 4, Jesse Caplan brought his views on the intersection of the twin topics of antitrust and healthcare compliance.
Highlights of this podcast include

  1. What is the intersection of healthcare and antitrust compliance?
  2. Why compliance and ethical culture have become so important from a regulatory perspective, a commercial perspective and a talent acquisition and maintenance perspective?
  3. How and why are States’ Attorney Generals using monitorships with greater frequency and focus.

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Jesse Caplan
Affiliated Monitors Inc.

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Not Your Father’s Monitor – Jesse Caplan on Antitrust and Healthcare Compliance

In October, Deputy Attorney General (DAG) Lisa O. Monaco gave a Keynote Address at ABA’s 36th National Institute on White Collar Crime (Monaco Speech). Her remarks reframed a discussion about the uses of, reasons for and perceptions on independent monitors and monitorships. I asked Affiliated Monitors Inc. (AMI) founder Vin DiCianni for his thoughts around the remarks on monitors. He said, “For Affiliated Monitors this refreshed approach by DAG Monaco highlights the seriousness which businesses must place on the investment in their programs and in addressing what has for some been a negative experience with a monitor. For those who might be the subject of a monitorship, DAG Monaco recognized that the negativity that has sometimes surrounded monitorships as being punitive, should be seen in a different light bringing value, pointing a way forward and as a solution which has had great success in resolving matters.”
Monaco’s remarks should be studied by every compliance professional as they portend a very large change in the way the Department of Justice (DOJ) will utilize monitors going forward. Over this podcast series, sponsored by AMI, we will consider why DAG Monaco’s remarks herald a new era for monitorships. We will consider Monaco’s remarks from a variety of perspectives. Bethany Hengsbach discussed this change in monitorships from the white-collar enforcement and defense perspective. Mikhail Reider-Gordon looked at global aspects of the new DOJ monitor’s focus. Cristina Revelo discussed how ethics and compliance (E&C) assessments help drive more compliant companies. We will conclude the series with Vin DiCianni who will look at where monitorships are going in 2022 and beyond. In Part 4, Jesse Caplan, Managing Director of Corporate Oversight, brings his views on the twin topics of antitrust and healthcare compliance.
Both antitrust and healthcare have significant needs for monitorships. Antitrust concerns raised by the government can be handled through a monitorship of specific issues so that a merger can often go through and satisfy the regulators. This is a prime example of the DOJ or Federal Trade Commission (FTC) extending their reach so that anti-competitive issues do not arise or are properly remediated. Healthcare regulators are most interested in the continued delivery of healthcare services, particularly on the state and local level. It is not in anyone’s interest to stop the delivery of healthcare services which puts a hospital, healthcare practice group or doctor out of business, absent grievous circumstances. By using a monitor, a state regulator can help assure an appropriate level of compliance from a healthcare provider.
There were three key components from the Monaco Speech around monitors. Number one, that monitors are not viewed by the DOJ as punitive and should not be viewed as such by the compliance community or wider corporate community. Here Caplan observed, it is not the job of a monitor “to be punitive, but rather to facilitate a successful compliance program and a successful settlement agreement, works with both the government and for the company.” Number two is a monitor can act as an early tripwire to prevent companies from sliding into a recidivous situation. Number three, monitors bring a level of skill and talent around compliance programs and corporate culture that can help companies create a best practices program so the monitor actually works with the companies under an enforcement action to help them create a program that will be sustainable far down the road. Caplan said, a monitor can bring an “appreciation for what government enforcers are looking for, what the goals of government regulators are, as well as some of the challenges and goals of companies, who want to be successful and to do so in a compliant and fair manner.”
We then turned to the evolution of thinking of state regulators around monitors. Caplan noted, “some of these state Attorney General’s (AG) offices have realized for a long-time monitors can really be a resource extend for government agencies and particularly enforcement agencies.” He pointed to the example of the “Massachusetts Attorney General’s office, particularly with their Medicaid fraud control.” He went on to say, “more and more state AGs are using monitors when they enter in settlement agreement with conditions.” Using an independent allows an extension of their resources, to “verify that the company is compliant with those settlement conditions.”
Perhaps most powerfully, independent monitors can be seen as “an honest broker, bridging between the company and the regulator. Moreover, monitors can actually facilitate, a successful transition and then termination of a monitorship.” Caplan said, “we can do that because we can have candid conversations with both the company and then separately with the government, so that we can better understand where there might be disconnect between the two, and then we can help connect compliance up so that there’s not misunderstandings. There may be different expectations that end up sometimes torpedoing a settlement agreement and by having those conversations, by serving as that bridge, we can help prevent problems address so that ultimately the monitorship is successful.”
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Jesse Caplan

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FCPA Compliance Report

Emerging Issues in Healthcare Compliance and Monitoring-Episode 3-Expanded Use of Independent Monitoring by Health Regulators

In this special five-part podcast series, sponsored by Affiliated Monitors, Inc., I visit with AMI Managing Director Jesse Caplan on emerging issues in healthcare compliance and monitoring. In this Episode 3, Jesse Caplan discusses how health regulatory agencies are using independent monitoring to serve important public policy goals – specifically to help ensure a ready supply of quality healthcare providers, particularly for government programs like Medicaid and Medicare.

Some of the issues we consider are:
How can independent monitoring can effectively and efficiently extend the ability of government regulators to oversee healthcare providers and organizations?

  1. As investigative, enforcement, and regulating agencies, the governments’ objectives are to ensure, above all, that patients and health care consumers receive high quality and safe care, that taxpayer money is efficiently and well spent, and that there is a healthcare industry environment and culture of compliance, transparency, and quality.In some cases, there are participants in the healthcare industry that simply cannot and will not meet these standards, and regulators will and should come down hard, including taking action to exclude the business or the individual provider from the industry. But in many cases what the health care company or practitioner really need is remediation.  If a healthcare company or practitioner can operate in the future in a manner that meets the government’s objectives – compliance, transparency and high-quality care – that is good for the industry and the patients and clients they serve. 
  1. But the challenge is that the government doesn’t typically have the resources to closely monitor a company or practitioner to ensure that they have satisfactorily remediated their problems, and are continuing to operate at the highest ethical and quality standards. When the government assigns resources to monitor ongoing activities of a company that has had significant compliance problems, that means there are less resources available to investigate new complaints about other healthcare companies, or to take enforcement actions where necessary.  Without independent integrity monitoring, the government may feel that the best way to protect the public and the government fisc is to take a very hardline enforcement approach that means exclusion from government healthcare programs, or revocation of an organization’s or practitioner’s healthcare license.  
  1. Independent integrity monitoring can provide an alternative – it offers the ability to have an independent and credible firm closely monitor the healthcare company future and ongoing compliance – thereby protecting the public and public fisc – without having to use government resources to do so. 

What is the value to the government of approving a monitoring relationship? 

  1. In all of these cases where monitoring is approved, the regulator, the regulator gets to impose the conditions that will be monitored. The regulator also gets to approve the firm or individual that will conduct the monitoring, and gets unfiltered reporting directly from the monitor.  And typically the monitoring is paid for by the healthcare company or practitioner that has had the compliance problems and that engages the monitor.  So the value to the regulating agency is pretty clear and significant:
  • They get to impose the conditions that the healthcare entity is required to meet;
  • They get to choose or approve the independent agency or individual who will be monitoring the conditions;
  • They get independent confirmation that the healthcare organization is operating in a safe and effective manner;
  • And the regulator doesn’t have to continue expending scarce resources on a settled case, and can instead use those resources on other investigatins or regulatory matters.

What are the benefits to a healthcare organization of an independent monitor?

  1. The organization may be in a position where agreeing to independent monitoring is their only alternative to having their licenses suspended or being excluded from government programs. So to some organizations they may see independent monitoring as a necessary evil.  But in our experience – and we’ve done well over 500 monitorships – the monitoring engagement can be a real positive and benefit for the organization. 
  1. For example, having an experienced third party assess your compliance with conditions – and in particular identify where the organization is meeting or exceeding its requirements as well as the areas where there are gaps in compliance – can be very valuable.Typically – at least in the matters where we serve as the independent monitor – we will communicate to the organization what they are doing well, and what they need to improve on, before reporting to the regulating agency.  This will give the organization the opportunity to remediate the areas that need remediation before these gaps are reported to the regulator; or, if they aren’t able to timely remediate the gap, to be prepared with a plan that they can communicate with the regulator on how they intend to address an identified deficiency.  
  1. We like to say that the independent monitor serves as a “Bridge” between the organization and the regulator, and frankly the independent monitor can help the organization navigate its compliance with the required conditions.

What are some recent examples of where healthcare regulators are using independent monitors in different contexts?

  1. AMI is currently engaged in monitoring conditions imposed by a state Department of Health on two hospital systems. Both these hospital systems encountered significant patient safety issues and risked losing the accreditation status and their Medicare participation.  They entered into consent agreements with the state DOH that included a series of remedial measures, working with The Joint Commission, implementing what are called Targeted Solution Tools, reporting to the Boards of Trustees and Quality Oversight Committees of the two systems, and reporting progress to the DOH.  In both cases the DOH required the hospital systems to engage an independent monitor to observe, validate, and report on their compliance with all of these conditions.  I believe in these instances both the regulatory agency and the healthcare organizations would attest to the benefits of having the independent firm serve as a bridge between them in facilitating their compliance with all the conditions in the Consent Agreements, and in maintaining productive communications.

Join us for Episode 4, where we discuss independent integrity monitoring of healthcare organizations or systems.
For more information on Affiliated Monitors, check out their website here.