The Application of Sarbanes-Oxley to the Non-Profit Healthcare Sector Presented to: American Society of Law, Medicine & Ethics and Seton Hall University School of Law Health Law & Policy Program April 25, 2003 James R. Schwartz Manatt, Phelps & Phillips, LLP
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The Application of Sarbanes-Oxley to the Non-Profit Healthcare Sector Presented to: American Society of Law, Medicine & Ethics and Seton Hall University.
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The Application of Sarbanes-Oxley to the Non-Profit Healthcare Sector
Presented to:American Society of Law, Medicine & Ethics
and Seton Hall University School of Law
Health Law & Policy ProgramApril 25, 2003
James R. SchwartzManatt, Phelps & Phillips, LLP
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• Corporate Responsibility Initiatives Apply to Non-Profits as Well as For Profits
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I. Introduction
• Hershey Trust• Health Partners• Health Midwest• CareFirst
• Bishop Trust• AHERF• ALLINA• United Way of the
National Capitol Area
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• Bishop Trust– Criminal Prosecution (unsuccessful) of Two
Trustees
– Forced Resignation of Entire Board
– Restructuring of Trust Through Civil Action in a Manner Inconsistent With Trust Document
• AHERF– Criminal Prosecution of CEO - CFO - GC
– Massive Civil D&O Liability Action
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II. There are Consequences for Real orPerceived Failures in Corporate Governance
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• ALLINA– AG “Compliance Audit” (no lawsuit)
– Resignation of Virtually Entire Board
– Forced Restructuring of Corporation
• Hershey Trust– Proposed Sale of Corporate Assets Blocked
– Restructuring of Board With Resignation of Existing Board Members
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II. Consequences (cont’d.)
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• Health Partners– AG Compliance Audit
– AG Demand That Board Appoint Two Individuals of AG’s Selection to Board (Including Chair)
– In Litigation
• Health Midwest– Challenge By Missouri & Kansas AGs to Proposed
Sale of Nonprofit Health System Assets to HCA• Litigation in Both States
• AGs Seeking Control of Sale Proceeds
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II. Consequences (cont’d.)
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• CareFirst– Md. Insurance Commissioner Rejected Proposed Sale
of Md. Blue Cross Plan to Wellpoint
– Challenged: • Executive Compensation
• Due Care of Board
• Independence of Outside Financial Consultants (MEETH Revisited)
• United Way of the National Capitol Area– “Slater Report”
– Begins Application of Sarbanes-Oxley to Non Profits
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II. Consequences (cont’d.)
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• Regulators are in an Aggressive Mode– State Attorneys General See Parallels Between
• For-Profit Companies Disclosure Requirements to Shareholders and
• Non-Profits Disclosure to the Public
• There Are “Spill-Over” Effects ofSarbanes-Oxley– State Attorneys General will look to:
• More Proactive Boards
• Vigorous Board Oversight in Key Areas
• CEO/CFO Certifications of Financial Statements
• Board Responsibility for Conflicts of Interest7
III. The Message Is:
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• Expect Legislative Proposals to Apply Selected Portions of Sarbanes-Oxley to Non-Profits• New York - AG 2
– Mandatory Executive and Audit Committees
– Responsibility for Appointment, Compensation, Oversight of CPA Firm
– CPAs Report Directly to Audit Committee
– Independence of Audit Committee Members
– President/Treasurer Certification of Financial Reports and Internal Controls
– “Whistle Blower” Procedures/Protections
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III. The Message Is: (cont’d.)
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• Expect Legislative Proposals to Apply Selected Portions of Sarbones-Oxley to Non-Profits (cont’d.)– Incorporation of IRC 4958 “Safe Harbor” Standards and
Voidability of Related Party Transactions That do not Meet Standard
– Executive Compensation Requires Full Board Approval
– Limitations on Officer/Director Indemnification
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III. The Message Is: (cont’d.)
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• Adopt “Best Practices” to Protect Your Corporation and Your Board
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IV. Solution: Stay Ahead of the Curve
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• Steps You Can Take Consistent With Sarbanes-Oxley Provisions1. Establish an Independent Audit Committee
• Independent Members
• “Financially Literate” with at Least One Member a “Financial Expert”
• Oversight of Outside Auditors and Internal Audit Staff
• “Whistle Blower” Investigation Responsibility
• Authority to Engage Independent Experts/Counsel
• Meets with Auditors Outside of Presence of Management
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IV. Solution (cont’d.)
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• Steps You Can Take Consistent With Sarbanes-Oxley Provisions (cont’d.)2. Insure Independence of the Corporate Audit
Througha)Prohibition on the Provision of Specified Non-Audit Services
by Outside Auditors
b)Rotation of Audit Partner
c)Confirmation of Auditor Compliance With Rules Governing Auditor Professional Conduct
• Prohibit any Corporate Officer from Improper Influencing of the Corporate Audit
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IV. Solution (cont’d.)
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• Steps You Can Take Consistent With Sarbanes-Oxley Provisions (cont’d.)3. CEO/CFO Certification of Financial Reports
• Quarterly Certification From Affiliates
4. Establish Written Conflict of Interest Policies and Code of Ethics for Officers, Directors and Senior Financial Managers• Full Disclosure with Ongoing Responsibility to Update
• Internal Controls to Assure Review of COI Disclosures in Transaction Reviews
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IV. Solution (cont’d.)
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• Steps You Can Take Consistent With Sarbanes-Oxley Provisions (cont’d.)5. Establish Written Professional Responsibility
Guidelines for Disclosure of Material Violations of Law or Breaches of Fiduciary Duties to Appropriate Corporate Officials