Chapter 2. The Role of a Compliance Officer and Unique Issues in FCA Investigations

By Stanton Stock[1] and Joseph LaMagna[2]

A compliance officer is tasked with preventing, detecting, and responding to compliance concerns, in addition to sustaining the ethical culture of an organization.[3] The role is deemed to be distinct from the practice of law in that compliance officers are not representing an organization, like attorneys who work with or as general counsel. Thus, this is a less advocacy-oriented role.[4][5][6] The compliance program is supposed to ensure an “independent and objective” review of compliance efforts, whereas attorneys act as zealous advocates for the interests of an organization.[7] As noted in the Emory Law Journal, “Compliance officers ‘should be charged with and empowered to reveal issues—and may even advocate disclosing to, and cooperating with, the government in certain instances,’ while the general counsel’s role should be ‘to rigorously defend the company.’”[8]

To prevent, detect, and respond to possible False Claims Act (FCA) issues, a compliance officer must have command of a wide variety of legal subject matters. It is nearly impossible to memorize the body of statutory, regulatory, and subregulatory authorities that are applicable to most healthcare organizations. Fortunately, the Office of Inspector General (OIG) for the U.S. Department of Health & Human Services (HHS) provides an abundance of guidance in this regard, suggesting key areas needing attention as well as methods for identifying additional areas of concern, applicable to many healthcare providers.

This chapter provides an overview of the role of a compliance officer in dealing with FCA risks, highlighting important distinctions between compliance efforts and the practice of law. The application of an effective compliance program to FCA issues is a key responsibility of the compliance officer.

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