Legal Responsibilities for BHS System Board G. Dan Neel Director-Saluda BHS
What is your role as a Board Member? All BHS organizations are legal entities All are governed by Boards of Directors or Advisory Councils each with legal and ethical responsibilities that cannot be delegated. Legal and Fiduciary duties Strategic Planning Oversight Fund-Raising Activities Representation of constituencies and viewpoints
Fiduciary Responsibility Standards of conduct and management Maintain financial accountability Effective oversight You have the same obligation toward the assets of the agency as you do toward your own personal assets. You have a global responsibility to act prudently in all decision making. There is a regulatory environment in which we operate We will explore this later
Trustees of Assets Maintain Financial accountability Effective oversight Fiduciary duties require that you stay objective, unselfish, responsible, honest, trustworthy, and efficient Must always act for the good of the organization
The Nature of BHS Boards The third sector of business We provide a service to the community Audited revenues over expenditures should be carried into the next fiscal year. Non-Profit boards are an American tradition for solving social problems 301/BHS system grew out of a need
Collective and Shared Responsibilities Developing and maintaining the organization s mission Maintaining the organization s tax exempt status (if applicable) & its ability to attract charitable contributions Protecting the organizations resources Approving the organizations budget
Collective and Shared Responsibilities Hiring and evaluating the Director/CEO Providing oversight to organizations management Supporting fundraising activities The Board as a collective entity is responsible and liable for what happens in and to the organization
Key Points to Remember Individual Board have responsibilities but not personal authority As a collective body, the Board s role is to ensure that the organization Carries out it s mission Has the monetary and human resources to carry out that mission And provides sufficient oversight in order to maintain the mission of the organization
Questions You should ask What kind of oversight am I expected to provide? When and how can I be found personally liable? How can I avoid, or at least minimize, personal liability?
Fundamentals of Fiduciary Responsibility Board are fiduciaries: You are charged with exercising responsibility over the organization and its resources Your collective Board is always accountable to the public trust A fundamental test for all includes Reasonableness Prudence
Protection Board have ultimate authority along with ultimate responsibility Boards may become prime targets when problems arise: Most common problem is Guilt by Omission Followed by inactive oversight and accountability of management Protection is found in a Board attention to details as presented by management
The Three D s Duty of Care Duty of Loyalty Duty of Obedience These are the legal standards against which all actions taken by members are held Collectively and as individuals They require the active participation of all Board
Duty of Care Requires that you be reasonably informed about the organizations activities Participate in decisions Do so in good faith Do so with the care of an ordinarily prudent person In short Pay attention to the organizations activities and operations
Effective Discharge of Duty of Care Attendance at meetings and committees Advance preparation/reviewing reports and agendas prior to meetings Obtaining information, before voting, to make good decisions Use of independent judgment Periodic examination of the credentials and performance of those who serve the organization Frequent review of the orgs. finance and policies Compliance with filing requirements, particularly annual information returns
Duty of Loyalty This duty requires Board to exercise their power: In the interest of the organization Not in their own interest Not in the interest of another entity-particularly one in which you have a formal relationship When acting on behalf of the organization, members must put the interest of the organization before their personal and professional interests
Acts of Loyalty Disclosure of any conflicts of interest Adherence to the organizations conflict-of-interest policy Conflicts of interest are not inherently illegal-they are quite common-how the board handles them is important Avoidance of the use of opportunities for the individual s personal gain or benefit Nondisclosure of confidential information about the organization
Duty of Obedience Comply with applicable federal, state, and local laws Adhere to By-Laws Remain guardians of the mission Compliance with all regulatory and reporting requirements, tax requirements etc Examination of documents governing the organization and its operation Making decisions that fall within the scope of the organization s mission and governing documents
Questions The Board should Ask Is there a regular quorum? What do our by-laws say about missing meetings? Do we receive and read information in advance of meetings? Do you know the mission? Have you been oriented to the agency?
A Few Rules to Manage Liability PAY ATTENTION Your greatest liability comes from negligence Attend all meetings Be informed on all issues prior to any vote Pay attention to all financial transactions Participate in discussions Evaluate all matters than require your attention
Rules Know your Board Policies Failure to abide by your own policies creates an environment for potential litigation Failure to develop policies when needed only increases risks
Rules Use Common Sense in taking action as a Board Member Seek counsel when legal questions arise Ensure that the Boards Directors and Officers Insurance coverage is adequate
Legal Considerations for Board In a very legal sense, the only way individual Board can exercise authority is by making decisions together. Individually, outside the Board meeting, a Board Member has no legal authority to act on behalf of the Board without the Boards permission.
What you Don t Know will Hurt you Almost all of the problems that plague non-profit board can be trace on some level to a lack of oversight and involvement by the board. Rubber stamping on recommendations Allowing an influential member wide latitude Diligence and prudence means asking questions SEEK ADVICE WHEN NEEDED
Role of the Director The Director provides leadership to the Board but does not participate in voting activities The relationship of the Board and its Director is one of very high trust
DHEC Regulations/Board Requirements Regulatory Laws 61-93 401 General Policies/Procedures-Class II 501.B Qualified Administrator-Class II 604 Report Admin/change-Class III 703.A Record maintenance Class III 1701. Quality Improvement Program Class III
CARF Standards Business Practices Are consistent with business industry standards Promotes accountability Promotes effectiveness Promotes efficiency Corporate Compliance is accepted By formal resolution or other written document that establishes the compliance program
Role Of Board in Maintaining CARF Accreditation Assure accreditation Principles are demonstrated Policy on input from persons served Policy on accessibility Policy on outcomes Policy on health & safety Policy on legal requirements Policy on human resource management and diversity Responsible Financial management
Accreditation Issues Mission Adoption of formal statement of purpose
CARF ISSUES Governance Document Authority Community Input Ethical Standards Orient New Address conflicts of interest Meet at least three times a year Maintain minutes Evaluate Effectiveness
CARF Issues Management Supervise director Review management information Adopt budget Ensure annual audit Establish policy on investment of funds Annual review of funding sources Approve fee system Review insurance
CARF Issues Strategic Planning Need Assessment Long and short term goals Further Considerations Human resources Approve qualifications of staff positions Ensure existence of written job descriptions Approve personnel policies
HIPPA Have a clear understanding that you are responsible for ensuring and maintaining the confidentiality, privacy and security of all protected health information (electronic, written, verbal or any other format) that is provided or made available or that is obtained, handled, learned, heard or viewed in the course of work or association as a board member
Special Thanks To: All BHS Board The board experience should be a positive one The board is the caretaker for the organization Thank you for serving