Director fitness: a sensitive issue requires a serious response.
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Biomedical subjects
Publications and source records attributed to Michael W Peregrine.
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Not-for-profit healthcare providers have several options they can use to resist government attempts to apply the charitable trust doctrine to their business decisions. As a strategic defense, providers should perform internal due diligence that focuses on governing documents, financial arrangements, donations/solicitation, real estate, and charitable waste allegations.
The current corporate responsibility environment has prompted interested stakeholders, including legislators and state charity law officials, to more closely evaluate what constitutes the proper exercise of the "duty of care" by the director of a nonprofit corporation. The authors review recent developments affecting duty-of-care obligations and conclude that corporate responsibility and related concepts are likely to require directors to give greater consideration to the exercise of their "oversight" obligations as subsumed within the duty of care. The Article identifies a number of recent instances in which state charity law officials and other third parties have raised issues associated with the proper exercise of directors' oversight obligation, and concludes that directors of nonprofits will require greater counseling on their duty-of-care obligations in order to reduce their liability profile in an increasingly contentious environment.
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Healthcare financial managers are finding that regulatory agencies' customary focus on Medicare and tax-exemption concerns is shifting to other issues directly related to financial management. Regulatory agencies, such as the Securities and Exchange Commission, are scrutinizing not-for-profit and charitable trust law matters. Because of this renewed attention to existing regulations, healthcare financial managers need to increase their diligence in ensuring their organizations' compliance with those laws governing areas for which they traditionally have been accountable, including auditor relationships, restricted gifts, consulting arrangements, investment management, and financial reporting.
Directors of healthcare organizations normally owe fiduciary duties to their shareholders or, in the case of nonprofits, to the charitable mission of the organization. As an organization descends to bankruptcy, however, the board's duties may shift. At some point, the board may be imposed with different and often conflicting obligations to the corporate enterprise as a whole, with a primary criterion being the interests of creditors. In this article, the authors analyze the murky areas of the Zone and give guidance as to when the board's duty may shift-and as to how directors should proceed both in determining their duties and in working to fulfill them.
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Not-for-profit healthcare organizations are not immune to the scrutiny arising from corporate accounting scandals and legislation. Financial managers will play a critical role in satisfying corporate-responsibility concerns. Financial managers need to understand the public-policy concerns fueling the corporate-responsibility movement and the effects. Financial managers should take steps related to certifying financial statements, establishing audit committees, and ensuring independence of audits, among other actions.
A direct outgrowth of the Sarbanes-Oxley Act, best practices in corporate governance strengthen board independence, provide a framework for ethical decision-making and enhance compliance with state and national regulations.
The executive compensation committee walks a fine line between providing competitive executive pay and risking regulatory scrutiny. Here's how you can keep your balance.