American Medical Concepts
Code of Business Conduct and Ethics
I.
INTRODUCTION
A.
About the Code of Business Conduct and Ethics
American Medical Concepts (“AMC”) is committed to the highest standards of business
conduct in our relationships with one another and with our customers and suppliers. We conduct
our business in accordance with all applicable laws and regulations as well as with the highest
standards of business ethics. AMC’s Code of Business Conduct and Ethics (the “Code”) helps all
of us in this endeavor by providing a statement of the fundamental principles and key policies
and procedures that govern the conduct of our business. The Code applies to all AMC personnel,
which includes every AMC officer, employee, contractor and agent.1 You should understand
that the Code is not necessarily a reflection of what is required by law. It is a reflection of what
AMC believes to be optimal business ethics for our industry. In that way, many of the policies
go above and beyond what the law may require.
The Code is divided into the following areas:
•
•
•
•
•
•
•
•
Conflicts of Interest and Corporate Opportunities;
Entertainment, Gifts and Gratuities;
Compliance with Fraud and Abuse Laws;
Response to Government Investigations;
Confidentiality and HIPAA Compliance;
Antitrust and Competition;
Responsibility to One Another; and
Implementation of the Code.
1
The Code is a statement of policies for individual and business conduct and does not, in any
way, constitute an employment contract or an assurance of continued employment. Employment at AMC is
at-will except as otherwise provided by an express, written employment agreement. This means that you
may choose to resign your employment at any time, for any reason or for no reason at all. Similarly, AMC
may choose to terminate your employment at any time, for any legal reason or for no reason at all.
{2165.00001/MM634509.DOC, Ver. 3}
-1-
B.
Role of the Compliance Officer
AMC’s Compliance Officer serves as the focal point for all compliance-related activities.
Currently, the Compliance Officer is Steve Rissberger. The Compliance Officer’s
responsibilities include:
•
•
•
•
•
•
•
•
General oversight and implementation of the Code and AMC’s Compliance
Program;
Reporting on a regular basis to AMC’s governing body of the progress of
implementing the compliance program;
Ensuring that all officers, employees, contractors and agents have signed
certifications that they have received, read and understood the Code, and will
abide by the standards of conduct set forth in the Code;
Coordinating all compliance training activities;
Coordinating internal audits to verify AMC’s adherence to the Code’s guidelines;
Ensuring that AMC has policies in place that encourage individuals to report
suspected improprieties without fear of retaliation;
Reporting to AMC’s governing body on a quarterly basis of all compliancerelated activities and issues; and
Continuing the momentum of the compliance program beyond the initial period of
implementation.
AMC’s Compliance Officer shall be appointed by [NAME or COMMITTEE] and shall
report to [NAME].
In addition to the Compliance Officer, AMC may also assemble a Compliance Task
Force on an as-needed basis to assist the Compliance Officer in carrying out compliance-related
activities. The Compliance Officer shall direct the Compliance Task Force and designate
membership thereon.
C.
Shared Commitment to the Code
You are responsible for knowing and understanding the policies and guidelines in the
Code. AMC’s Compliance Officer is responsible for overseeing and monitoring AMC’s overall
compliance with this Code. It is essential that you seek help if you have questions, or want
clarification on any matters covered by the Code. Persons who can provide guidance on issues
addressed in the Code include the Compliance Officer and AMC’s legal counsel, David Robbins.
Contact information for these individuals is provided in Section X.A below. Reports concerning
violations or suspected violations of the Code should be made as outlined in more detail in
Section X of this Code. A toll-free anonymous hotline is available for reporting all known or
suspected violations of the Code. This is discussed in detail in Section X.C below. AMC will
not retaliate against or otherwise penalize any individual for making a good faith report of
suspected ethical or other business lapses.
{2165.00001/MM634509.DOC, Ver. 3}
-2-
Our conduct should reflect AMC’s values, demonstrate ethical leadership, and promote a
work environment that upholds AMC’s reputation for integrity, ethical conduct and trust. To that
end, we must:
•
Understand and make a personal commitment to the Code;
•
Lead by example, complying with the letter and spirit of the Code in always doing what
is right, even when the alternatives seem easier or more expedient;
•
Understand, and behave in accordance with, other AMC policies;
•
Ensure that we do not put our own interests ahead of AMC when performing our jobs, or
use our positions with AMC, or information acquired through those positions, for any
non-AMC purpose;
•
Conduct all work and business affairs lawfully and with integrity;
•
Provide the coaching and guidance necessary to ensure understanding of, and compliance
with, the Code;
•
Seek assistance, guidance or interpretation on difficult ethical and legal issues;
•
Report incidents of suspected unethical or unlawful conduct to the appropriate party;
•
Take prompt corrective and, when necessary, disciplinary action when an allegation of
wrongdoing is substantiated; and
•
Create a work environment that encourages frank, open and constructive communication
on all business matters, including allowing everyone to ask questions, make suggestions
and report errors and wrongdoing without fear of reprisal.
AMC is committed to providing training to each and every officer, employee, contractor
and agent regarding the provisions of the Code. Training will be coordinated by the Compliance
Officer and will be mandatory for all personnel. Compliance training will be verified for each
individual by (i) completion of a certificate (in the form of Attachment A to this Code) verifying
that each individual has received, read and understands the Code; and (ii) mandatory attendance
at AMC compliance and business ethics training sessions.
II.
CORPORATE OPPORTUNITIES AND CONFLICTS OF INTEREST
You owe a duty to AMC to advance its legitimate business interests when the opportunity
arises. You may not take for yourself opportunities that are discovered through the use of
corporate property, information, or position or use corporate property, information, or position
for personal gain. Nor may you compete with AMC.
In addition, you are expected to devote your best efforts and attention to AMC business
and the full-time performance of your job and to avoid any conflicts with AMC’s interests. In
order to maintain the highest degree of integrity in the conduct of AMC’s business, to adhere to
{2165.00001/MM634509.DOC, Ver. 3}
-3-
high ethical standards, and to maintain your independent judgment, you must avoid any activity
or personal interest that creates or appears to create an actual or potential conflict between your
interests and AMC’s interests.
A conflict of interest occurs when your private interests interfere in any way, or even
appear to interfere, with AMC’s interests as a whole or when your loyalties or actions are
divided between AMC’s interests and those of another, including, but not limited to, a
competitor, supplier or customer. A conflict can arise when you take actions or have interests
that make it difficult for you to perform your AMC work objectively and effectively. You should
never act in a way that could cause you to lose your independence and objectivity or that could
adversely affect the confidence of our customers, suppliers or fellow employees.
Although it is impossible to list every possible conflict, below are some common
examples that illustrate actual or apparent conflicts of interest that should be avoided:
Improper Personal Benefits from AMC. Conflicts of interest arise when you or a
member of your immediate family receive improper personal benefits as a result of your
position with AMC. You may not accept any benefits that have not been authorized and
approved pursuant to AMC policy and procedure, including any AMC loans or
guarantees of your personal obligations.
Financial Interests in Other Businesses. You and your immediate family members may
not have an ownership interest in any other enterprise if that interest compromises or
appears to compromise your loyalty to AMC. For example, you may not own an interest
in a company that competes with AMC. You may not own a significant interest in a
company that does business with AMC (such as a customer or supplier) without the prior
written approval of the AMC Compliance Officer.
Business Arrangements with AMC. Without prior written approval from the AMC
Compliance Officer, you may not participate in a joint venture, partnership or other
business arrangement with AMC.
Outside Employment or Activities with a Competitor. Simultaneous employment
(including self-employment or work performed in a consulting capacity) with a
competitor of AMC is prohibited, as is any activity that is intended to, or that you should
reasonably expect, to advance a competitor’s interests. You may not be a director of an
AMC competitor or of a company or organization that supports or promotes competitive
products or services. You may not market products or services in competition with
AMC’s current or potential business activities. It is your responsibility to consult with the
AMC Compliance Officer to determine whether a planned activity will compete with any
of AMC’s business activities before you pursue the activity in question.
Outside Employment with a Customer or Supplier. Without prior written approval from
the AMC Compliance Officer, you may not be a customer of, or be employed (including
in any consulting capacity) by, serve as a director of, or represent a customer of AMC.
Similarly, without prior written approval from the AMC Compliance Officer, you may
{2165.00001/MM634509.DOC, Ver. 3}
-4-
not be a supplier to, be employed by (including in any consulting capacity), serve as a
director of, or represent a supplier to AMC. Nor may you accept money or benefits of any
kind as compensation or payment for any advice or services that you may provide to a
client, supplier, or anyone else in connection with its business with AMC.
Family Members Working in the Industry. You may find yourself in a situation where
your spouse or significant other, children, parents, in-laws, or someone else with whom
you have a familial relationship is a competitor, supplier or customer of AMC or is
employed by (or is a significant stockholder of) one. Such situations are not prohibited,
but they call for extra sensitivity to security, confidentiality and conflicts of interest.
To remove any issues, you must disclose your specific situation to AMC’s Compliance
Officer to assess the nature and extent of any concern and how potential conflicts can be
resolved, if at all.
If you are not sure whether a transaction, activity or relationship could create an actual or
potential conflict of interest, you should discuss it with the AMC Compliance Officer.
III.
ENTERTAINMENT, GIFTS AND GRATUITIES
When making business decisions on AMC’s behalf, your decisions should be based on
your uncompromised judgment. Employees interacting with any person who has business
dealings with AMC (including suppliers, customers, competitors, contractors and consultants)
must conduct such activities in the best interest of AMC, using consistent and unbiased
standards. AMC officers and employees may not accept any gifts, entertainment or gratuities
that could influence or be perceived to influence our sourcing, purchasing and other
decisions, or be in a position to derive any direct or indirect benefit or interest from a party
having business dealings with AMC.
A.
Receipt of Gifts and Entertainment
You may not accept any gifts, entertainment or gratuities that could influence or be
perceived to influence your business decisions on AMC’s behalf. You may not ask for gifts,
entertainment or any other business courtesies from people doing business with AMC.
Unsolicited gifts and business courtesies, including meals and entertainment, are permissible if
they are customary and commonly accepted business courtesies, not excessive in value, and
given and accepted without an express or implied understanding that you are in any way
obligated by your acceptance of the gift.
You must never accept gifts of cash or cash equivalents (including gift certificates,
securities, below-market loans, etc.) in any amount. Any such gifts must be returned promptly to
the donor.
B.
Offering Gifts and Entertainment; General Guidelines
{2165.00001/MM634509.DOC, Ver. 3}
-5-
Business meals and entertainment should be infrequent and consistent with accepted
business practice, and should be for the sole purpose of furthering a business relationship. You
should not furnish or offer to furnish any gift that is of more than nominal value or that goes
beyond the common courtesies associated with accepted business practices. In addition, when
providing gifts or entertainment to physicians or other health care professionals, you must
follow the specific guidelines discussed in Section III.D below. For example, entertainment
(other than modest meals provided in connection with sales and promotional meetings),
may not be provided to physicians and other health care providers.
Our suppliers and customers likely have gift and entertainment policies of their own. You
should be careful never to provide or accept a gift or entertainment that violates the other
company’s gift and entertainment policy.
What is acceptable in the commercial business environment may be entirely unacceptable
in dealings with the government. There are strict laws that govern providing gifts, including
meals, entertainment, transportation and lodging, to government officials and employees. You
are prohibited from providing gifts or anything of value to government officials or employees or
members of their families in connection with AMC business without prior written approval from
the AMC Compliance Officer.
Offering, giving or receiving any payment or gift in the nature of a bribe or kickback (for
instance, in exchange for referral or recommendation of referral of business) is absolutely
prohibited.
If you face a situation where declining a gift may jeopardize a business relationship, are
requested to pay a bribe or provide a kickback, or encounter a suspected violation of this policy,
you must report the situation to your supervisor or the Compliance Officer immediately.
C.
Workshops, Seminars and Training Sessions
AMC employees are encouraged to participate in, attend and sponsor educational
workshops, seminars, and training sessions. You may attend vendor sponsored educational
functions, but may not accept vendor funding for travel and lodging expenses associated with
such functions.
When soliciting funding for the sponsorship of workshops, seminars and training
sessions, it is AMC policy to follow the industry guidelines for supporting third-party
educational conferences set forth in the Advanced Medical Technology Association
(“AdvaMed”) Code of Ethics on Interactions with Health Care Professionals. These guidelines
provide:
•
Educational Grants. AMC may provide grants either directly to the conference
sponsor to reduce conference costs, or to a training institution or the conference
sponsor to allow attendance by medical students, residents, fellows, and others who
are Health Care Professionals (“HCPs”) in training. Educational grants may be
provided when: (1) the gathering is primarily dedicated to promoting objective
{2165.00001/MM634509.DOC, Ver. 3}
-6-
scientific and educational activities and discourse; and (2) the training institution or
the conference sponsor selects the attending HCPs who are in training. Such grants
should be paid only to organizations with a genuine educational purpose or function,
and may be used only to reimburse the legitimate expenses for bona fide educational
activities. The grants also should be consistent with relevant guidelines established by
professional societies or organizations. The conference sponsor should be responsible
for and control the selection of program content, faculty, educational methods, and
materials.
•
Modest Meals and Hospitality. Funding to the conference sponsor to support the
conference’s meals and hospitality may also be provided. Also, AMC may directly
provide meals and receptions for HCP attendees, but only if it is provided in a manner
that is also consistent with the sponsor’s guidelines. Any meals, receptions, and
hospitality should be modest in value and should be subordinate in time and focus to
the purpose of the conference.
•
Faculty Expenses. AMC may make grants to conference sponsors for reasonable
honoraria, travel, lodging, and meals for HCPs who are bona fide conference faculty
members.
•
Advertisements and Demonstration. AMC may purchase advertisements and lease
booth space for company displays at conferences.
Prior to planning an AMC-sponsored educational workshop, seminar or training session,
you must contact AMC’s Compliance Officer or its legal counsel, David Robbins, to determine
appropriate conduct under applicable guidelines.
D.
AMC’s Policy on Gifts to Health Care Professionals (“HCPs”)
The guidelines set forth below address interactions with health care professionals
(“HCPs”) and activities that relate to the marketing of medical devices. These Guidelines mirror
the current “Code of Ethics on Interactions with Health Care Professionals” promulgated by
AdvaMed. The Guidelines apply whenever you are engaged in marketing to or interacting with
an HCP (as defined below) on behalf of AMC, under the circumstances described below.
An “HCP” means any person who: (1) is licensed by state law to prescribe drugs for
human patients; (2) is a medical student; or (3) is a member of any drug formulary committee.
For purposes of complying with these guidelines, you should assume that any practicing
physician is an HCP.
AMC is required by law to annually certify its compliance with its policies on Gifts to
Health Care Practitioners under California’s Comprehensive Compliance Program Act, see Cal.
Health & Safety Code §§ 119400 – 119402. Accordingly, strict compliance with the
requirements below is extremely important. If you have any questions about these limitations or
whether a gift or entertainment expenditure is permitted, please contact AMC’s Compliance
Officer.
The Code’s Policy on Gifts to Health Care Professionals addresses:
{2165.00001/MM634509.DOC, Ver. 3}
-7-
•
Spending on gifts and entertainment for HCPs;
•
Types of gifts and promotional items that may be provided;
•
Meetings with HCPs;
•
Support for Scientific and Educational Conferences;
•
Compensation for consulting services provides by HCPs; and
•
Certain additional general principles to keep in mind.
1.
Annual Spending Limit for Gifts to HCPs
California law requires AMC to limit the annual dollar amount of gifts, promotional
items and activities provided to HCPs. You may not spend more than $300 on such items for
any HCP- including any amount spent on their staff - in any financial year. Note that AMC
abides by California’s $300 spending limit regardless of the location in which its sales force is
operating. The AMC Compliance Officer can advise you of your spending to date so that you
can monitor your total. You must report all spending on gifts, promotional items and activities
for HCPs to AMC’s Compliance Officer, to permit tracking of expenditures.
2.
Types of Gifts and Promotional Items That May be Provided
In addition to the annual spending limit above, when offering items to HCPs in
interactions that relate to the marketing of medical device products, the following restrictions
apply:
•
Items primarily for the benefit of patients may be offered to HCPs if they are not of
substantial value ($100 or less, based on the cost of such item to the purchaser). Items
which would not be considered primarily of benefit to the patient include golf balls, tshirts, gift baskets, wine, and DVD/CD players for an HCP’s office. Items which
could be considered primarily for the benefit of the patient include anatomical models
for use in examination rooms and medical textbooks.
•
Items should not be offered on more than an occasional basis, even if each individual
item is appropriate.
•
Items of minimal value may be offered if they are primarily associated with an HCP’s
practice (such as pens, notepads, and similar reminder items with company or product
logos).
•
Items intended for the personal benefit of HCPs or their staff members (such as floral
arrangements, bagels/doughnuts, artwork, music CDs or tickets to a sporting event)
should not be offered.
{2165.00001/MM634509.DOC, Ver. 3}
-8-
•
Payments in cash or cash equivalents (such as gift certificates) should not be offered
to HCPs or their staff either directly or indirectly, except as compensation for bona
fide services (as described below).
3.
Sales and Promotional Meetings with HCPs
At informational presentations, discussions and other meetings conducted by persons
speaking on AMC’s behalf that concern particular marketed products or product lines, the
following restrictions apply:
•
You may offer occasional meals (but no entertainment/recreational events) to HCPs so
long as they: (a) are modest as judged by local standards; and (b) occur in a venue and
manner conducive to informational communication; and (c) provide scientific or
educational value.
•
Inclusion of an HCP’s spouse or other guests is not appropriate.
•
Offering HCPs take-out meals or meals to be eaten without an AMC representative being
present (such as dine & dash programs) is not appropriate.
•
It is not appropriate to pay honoraria or travel or lodging expenses to non-faculty and
non-consultant attendees (including staff or family members) at company-sponsored
meetings including attendees who participate in interactive sessions.
4.
Scientific and Educational Conferences
At continuing medical education (“CME”) or other third-party scientific and educational
conferences or professional meetings for HCPs:
•
AMC may provide financial support, where the gathering is primarily devoted to
promoting scientific and educational activity. Any such financial support should be given
to the conference’s sponsor and not directly to any attendee.
•
If AMC is underwriting a medical conference or meeting other than our own,
responsibility for and control over the selection of content, faculty, educational methods,
materials, and venue belongs to the organizers of the conference or meeting in
accordance with their guidelines. AMC may not attempt to control the substance,
structure or presenters of any such meeting.
•
Financial support should not be offered for the costs of travel, lodging, or other personal
expenses of non-faculty HCPs attending the conference or meeting, either directly to the
individuals attending the conference or indirectly to the conference sponsor (except as
specified below). Similarly, funding should not be offered to compensate for the time
spent by HCPs attending the conference or meeting.
•
Financial support for meals or receptions may be provided to the CME sponsors who in
turn can provide meals or receptions for all attendees. AMC also may provide meals or
{2165.00001/MM634509.DOC, Ver. 3}
-9-
receptions directly at such events in compliance with the sponsoring organization’s
guidelines.
•
In either of the above situations, the meals or receptions should be modest and conducive
to discussion among faculty and attendees, and the amount of time at the meals or
receptions should be significantly less than the amount of time spent on educational
activities.
5.
Compensation for Consulting or Advisory Services
When HCPs provide consulting or advisory services:
•
AMC may offer reasonable compensation and reasonable travel, lodging, and meal
expenses incurred as part of providing those services. Compensation and reimbursement
that would be inappropriate in other contexts can be acceptable for bona fide consultants
in connection with their consulting arrangements.
•
Token consulting or advisory arrangements should not be used to justify compensating
HCPs for their time or their travel, lodging, and other out-of-pocket expenses. The
concept is simple — real work for reimbursement, with a defined and auditable work
product.
•
The following factors support the existence of a bona fide consulting arrangement:
o a written contract specifies the nature of the services to be provided and the basis
for payment;
o
a legitimate need for the services has been clearly identified in advance of
requesting the services and entering into arrangements with the prospective
consultants;
o
the criteria for selecting consultants are directly related to the identified purpose
and the persons responsible for selecting the consultants have the expertise
necessary to evaluate whether the particular HCPs meet those criteria;
o
the number of HCPs retained is not greater than the number reasonably necessary
to achieve the identified purpose;
o
AMC maintains records concerning and makes appropriate use of the services
provided by consultants; and
o
the venue and circumstances of any meeting with consultants are conducive to the
consulting services and activities related to the services are the primary focus of
the meeting, and any social or entertainment events are clearly subordinate in
terms of time and emphasis.
6.
General Considerations
{2165.00001/MM634509.DOC, Ver. 3}
- 10 -
It is important that you ask the following questions any time you are interacting with or
arranging entertainment or incentives for an HCP. If you believe the answer to any of these
questions may be yes, you must contact the AMC Compliance Officer to discuss your proposed
activity and ensure that it is structured to comply with AMC policies.
•
Does the arrangement or activity have the potential to interfere with, or skew, clinical
decision-making?
•
If the arrangement or activity involves providing information about medical devices to
decision-makers, prescribers, or patients, is the information incomplete, inaccurate, or
misleading in any way?
•
Does the arrangement or activity have the potential to increase costs to the federal health
care programs (Medicare, Medicaid, TRICARE) or their beneficiaries, or enrollees?
•
Does the arrangement or activity have the potential to increase the risk of overutilization
or inappropriate utilization of medical devices or other health care services, items or
supplies in general?
•
Does the arrangement or activity raise patient safety or quality of care concerns?
IV.
COMPLIANCE WITH FRAUD AND ABUSE LAWS
Generally, the federal fraud and abuse laws prohibit the use of kickbacks to induce the
purchase of goods and services under governmental healthcare programs and the submission of
false claims to the Medicare or Medicaid programs.
A.
Federal Anti-Kickback Statute
The federal Anti-Kickback Statute prohibits the offer, payment, solicitation or receipt of
any remuneration to induce or reward the purchase, arranging for or recommending of any item
or service, payable in whole or in part by a federal or state health care program.
A few examples of remuneration relevant to the medical device industry are: (i) buy one,
get one free, (ii) volume rebates, (iii) redeemable coupons; and (iv) value-added services. The
government’s concerns about kickbacks are that kickbacks may:
•
lead to over-use of products or services;
•
increase costs to government programs;
•
distort true costs; and/or
•
influence product selection.
When considering the implications of any marketing plan under the Anti-Kickback
Statute, the following question should be asked: Does the proposed practice implicate the
{2165.00001/MM634509.DOC, Ver. 3}
- 11 -
statute? In other words, does the practice appear to offer any remuneration to induce the
purchase, arranging for or recommending of any item or service, payable in whole or in part by a
federal or state health care program? If one purpose of the payment or remuneration is to
influence referrals, the entire transaction may be prohibited under this law.
o
If yes, is the practice protected by a safe harbor, discussed below (for example,
the business falls within a discount or personal service safe harbor)?
o
If no, the practice must be closely scrutinized, and the risk level carefully
evaluated with advice of AMC’s Compliance Officer or legal counsel.
1.
Statutory Exceptions and Regulatory Safe Harbors to the AntiKickback Statute
Certain practices are specifically exempted from the prohibitions of the Anti-Kickback
Statute. These statutory exceptions are:
•
discounts properly disclosed and reflected in the costs claimed or charges made by the
provider;
•
an employer’s payments to an employee for bona fide employment;
•
providers’ payments to a Group Purchasing Organization (GPO), if the providers and
GPO have a written agreement that specifies the fee and the GPO discloses the amount of
its fee to providers purchasing from it;
•
waivers of coinsurance amounts in connection with certain federally qualified health care
centers;
•
certain risk-sharing arrangements; and
•
activities protected by the safe harbor regulations.
If an activity fits within these exceptions, it cannot give rise to prosecution under the AntiKickback Statute. In addition to the statutory exceptions, there are also numerous regulatory
“safe harbors” that exempt certain arrangements from prosecution under the Anti-Kickback
Statute. Failure to comply with a safe harbor does not mean that an arrangement is illegal,
however. Instead, the arrangement would be evaluated on a case-by-case basis. Two regulatory
“safe harbors” that may apply to some of AMC’s financial arrangements are the discount safe
harbor and the personal services safe harbor, discussed below.
a.
Discount Safe Harbor
Discounts may include rebate checks, credits or coupons redeemable from the seller, but
only to the extent that the reduction in price is attributable to the original product or service
purchased. Discounts do not include cash payments or furnishing one product or service at a
reduced charge or at no charge in exchange for an agreement to buy a different product unless
{2165.00001/MM634509.DOC, Ver. 3}
- 12 -
the two products are reimbursed under the same payment methodology. This type of activity is
not protected by the Discount Safe Harbor.
If the buyer is a provider (Medicare Part A cost reporter) or supplier (receives Medicare
Part B charge-based reimbursement) and the value of the discount is known at the time of sale,
AMC must:
•
fully and accurately report the discount to the buyer;
•
inform the buyer of its obligation to report the discount.
If AMC does not know the value of the discount at the time of sale, it must:
•
fully and accurately report the existence of the discount program;
•
inform the buyer of its reporting obligation; and
•
provide the buyer with documentation of the calculation of the discount, identifying the
products purchased to which the goods apply, when the value of the discount becomes
known.
If the buyer is a Medicare HMO or competitive medical plan, AMC need not report the
discount.
b.
Personal Services Safe Harbor
To satisfy the personal services safe harbor, all of the following requirements must be
met:
•
there is a signed, written agreement that specifies the services to be performed;
•
if the services are intermittent, the agreement specifies the schedule of services and exact
charge;
•
the term of the agreement is at least one year;
•
the aggregate compensation is set in advance and does not take into account the value or
volume of referrals or business generated between the parties;
•
the services do not involve counseling or promotion or other business arrangements that
violate state or federal law; and
•
the contracted for services do not exceed those required for legitimate business purposes.
In addition to the above safe harbors, it is possible that other safe harbors may apply to
specific financial arrangements. Please contact AMC’s Compliance Officer to discuss whether a
particular arrangement complies with the Anti-Kickback Statute.
{2165.00001/MM634509.DOC, Ver. 3}
- 13 -
B.
Federal False Claims Act
The federal False Claims Act prohibits knowingly making or causing to be made any
false statement or representation of material fact in any claim for benefits or payments under a
federal healthcare program (including Medicare or Medicaid). For purposes of the False Claims
Act, the term “knowingly” means that the person has actual knowledge of the information or acts
in deliberate ignorance or in reckless disregard of the truth or falsity of the information. No proof
of specific intent to defraud is required. Even though many of AMC’s activities do not involve
direct submission of claims to Medicare or Medicaid or other public payors, false information
that is provided to entities that do bill (e.g., hospitals, physicians) could create False Claims Act
liability because such information may have “caused” false claims to be submitted.
This law has become the federal government’s chief weapon against healthcare fraud and
abuse. The government frequently attempts to associate anti-kickback claims with the False
Claims Act because the False Claims Act provides for greater monetary penalties. Examples of
practices that could be interpreted as False Claims include:
•
billing for services or supplies not actually provided;
•
providing medically unnecessary services or supplies;
•
upcoding or misclassification of the level of services provided; and
•
filing erroneous reimbursement claims forms.
{2165.00001/MM634509.DOC, Ver. 3}
- 14 -
C.
Sanctions for Violating the Federal Fraud and Abuse Laws
The sanctions for violating the federal fraud and abuse laws are severe. They can include
monetary penalties, imprisonment and exclusion from participation in government healthcare
programs. Monetary penalties include:
•
Anti-Kickback Statute: Criminal - $25,000 and/or five years in prison;
•
False Claim Act: Civil - $5,500-$11,000 per false claim, plus three times the actual losses
sustained by the federal government.
In addition, violations can be punished by exclusion from participation in federal health
care programs. Mandatory (i.e., automatic) exclusion is imposed when an individual or entity is
convicted of a criminal offense relating to any one of the following activities:
•
the delivery of service under the Medicare program or any state health care program;
•
the neglect or abuse of patients;
•
fraud, theft, embezzlement, breach of fiduciary responsibility or other financial
misconduct with respect to a health care program operated by a government entity;
•
a felony for the unlawful distribution, prescription or dispensing of a controlled
substance; or
•
a felony under federal, state or local law relating to healthcare fraud, even if government
programs are not involved.
Significantly, exclusions can be imposed upon individuals or entities that indirectly
participate in federal healthcare programs. If an indirect provider is excluded, then the services or
items it furnishes or manufactures become non-reimbursable due to the excluded status of the
individual or entity. And any direct provider that submits a request for reimbursement for such
items or services is subject to civil money penalties, if it knew or should have known of the
exclusion.
V.
ANTITRUST AND COMPETITION ISSUES
AMC depends on its reputation for quality, service and integrity. The way we interact
with our customers, competitors and suppliers molds our reputation, builds long-term trust and
ultimately determines our success. You should endeavor to deal fairly with AMC’s customers,
suppliers, competitors and employees. We must never take unfair advantage of others through
manipulation, concealment, abuse of privileged information, misrepresentation of material facts
or any other unfair dealing practice.
While AMC competes vigorously in all of its business activities, its efforts in the
marketplace must be conducted in accordance with the letter and spirit of applicable antitrust and
competition laws. While it is impossible to describe antitrust and competition laws fully in any
{2165.00001/MM634509.DOC, Ver. 3}
- 15 -
code of business conduct, this Code will give you an overview of the types of conduct that are
particularly likely to raise antitrust concerns. If you are or become engaged in activities similar to
those identified in the Code, you should promptly consult the AMC Compliance Officer for
further guidance.
A.
Conspiracies and Collaborations Among Competitors
One of the primary goals of the antitrust laws is to promote and preserve each
competitor’s independence when making decisions on price, output, and other competitively
sensitive factors. Some of the most serious antitrust offenses are agreements between
competitors that limit independent judgment and restrain trade, such as agreements to fix prices,
restrict output or control the quality of products, or to divide a market for customers, territories,
products or purchases. You should not agree with any competitor on any of these topics, as these
agreements are virtually always unlawful. (In other words, no excuse will absolve you and/or
AMC of liability.)
Unlawful agreements need not take the form of a written contract or even express
commitments or mutual assurances. Courts can — and do — infer agreements based on loose
talk, informal discussions, or the mere exchange between competitors of information from which
pricing or other collusion could result. Any communication with a competitor’s representative,
no matter how innocuous it may seem at the time, may later be subject to legal scrutiny and form
the basis for accusations of improper or illegal conduct. You should take care to avoid involving
yourself in situations from which an unlawful agreement could be inferred.
By bringing competitors together, trade associations and standard-setting organizations
can raise antitrust concerns, even though such groups serve many legitimate goals. The exchange
of sensitive information with competitors regarding topics such as prices, profit margins, output
levels, or billing or advertising practices can potentially violate antitrust and competition laws, as
can creating a standard with the purpose and effect of harming competition. If you are attending
a trade association or standard setting organization meeting at which potentially competitively
sensitive topics are discussed without oversight by an antitrust lawyer, you should notify the
AMC Compliance Officer immediately.
Joint ventures with competitors are not illegal under applicable antitrust and competition
laws. However, like trade associations, joint ventures present potential antitrust concerns, and the
AMC Compliance Officer or its legal counsel should therefore be consulted before negotiating or
entering into such a venture.
B.
Distribution Issues
Relationships with customers and suppliers can also be subject to a number of antitrust
prohibitions if these relationships harm competition. For example, it can be illegal for a company
to affect competition by agreeing with a supplier to limit that supplier’s sales to any of AMC’s
competitors. Collective refusals to deal with a competitor, supplier or customer may be unlawful
as well. While a company generally is allowed to decide independently that it does not wish to
buy from or sell to a particular person, when such a decision is reached jointly with others, it
{2165.00001/MM634509.DOC, Ver. 3}
- 16 -
may be unlawful, regardless of whether it seems commercially reasonable. Finally, it is always
unlawful to restrict a customer’s re-selling activity through minimum resale price maintenance
(for example, by prohibiting discounts).
Other activities that can raise antitrust concerns include:
•
discriminating in terms and services offered to customers where a company treats one
customer or group of customers differently than another;
•
exclusive dealing agreements where a company requires a customer to buy from, or a
supplier to sell to, only that company;
•
tying arrangements where a customer or supplier is required, as a condition of purchasing
one product, to also purchase a second, distinct product; bundled discounts, in which
discount or rebate programs link the level of discounts available on one product to
purchases of separate but related products (for example, pencils linked to other office
supplies); and
•
predatory pricing, where a company offers a discount that results in the sales price of a
product being below the product’s cost (the definition of cost varies depending on the
court), with the intention of sustaining that price long enough to drive competitors out of
the market.
Because these activities are prohibited under many circumstances, you should consult the
AMC Compliance Officer or its legal counsel before implementing any of them.
C.
Penalties
Failure to comply with the antitrust laws could result in jail terms for individuals and
large criminal fines and other monetary penalties for both AMC and individuals. In addition,
private parties may bring civil suits to recover three times their actual damages, plus attorneys’
fees and court costs.
The antitrust laws are extremely complex. Because antitrust lawsuits can be very costly,
even when a company has not violated the antitrust laws and is cleared in the end, it is important
to consult with AMC’s Compliance Officer before engaging in any conduct that even appears to
create the basis for an allegation of wrongdoing. It is far easier to structure your conduct to avoid
erroneous impressions than to have to explain your conduct in the future when an antitrust
investigation or action is in progress. For that reason, when in doubt, consult AMC’s Compliance
Officer with your concerns.
D.
Gathering Information About AMC’s Competitors
It is entirely proper for us to gather information about our marketplace, including
information about our competitors and their products and services. However, there are limits to
the ways that information should be acquired and used, especially information about competitors.
In gathering competitive information, you should abide by the following guidelines:
{2165.00001/MM634509.DOC, Ver. 3}
- 17 -
•
We may gather information about our competitors from sources such as published
articles, advertisements, brochures, other non-proprietary materials, surveys by
consultants and conversations with our customers, as long as those conversations are not
likely to suggest that we are attempting to (a) conspire with our competitors, using the
customer as a messenger, or (b) gather information in breach of a customer’s
nondisclosure agreement with a competitor or through other wrongful means. You should
be able to identify the source of any information about competitors.
•
We must never attempt to acquire a competitor’s trade secrets or other proprietary
information through unlawful means, such as theft, spying, bribery or breach of a
competitor’s nondisclosure agreement.
•
If there is any indication that information that you obtain was not lawfully received by
the party in possession, you should refuse to accept it. If you receive any competitive
information anonymously or that is marked confidential, you should not review it and
should contact the Law Department immediately.
The improper gathering or use of competitive information could subject you and AMC to
criminal and civil liability. When in doubt as to whether a source of information is proper, you
should promptly AMC’s Compliance Officer.
VI.
RESPONDING TO GOVERNMENT INQUIRIES AND INVESTIGATIONS
In order to detect and prevent fraudulent or unlawful practices, federal and state
governments frequently investigate health care entities, including medical device suppliers and
distributors. It is not uncommon for federal or state agents to attempt to contact or question
employees of an entity under investigation. AMC’s policy is to provide full cooperation to these
government authorities while protecting the rights of AMC and its employees. During any
investigation, you must not conceal, destroy or alter documents or lie or make misleading
statements to government officials. Because investigations may involve complicated legal issues,
you must notify AMC’s Compliance Officer or its legal counsel immediately if you are contacted
by a government agent.
If a government investigator contacts you, you should be aware that generally you do not
need to talk with investigators unless you want to. AMC’s legal counsel would like to be present
if and when you speak with investigators. Because it is possible that any government
investigation may target individuals, you may wish to have your own attorney represent you in
any such communication. In appropriate situations, AMC may reimburse your legal fees, but
AMC will only do so if the Compliance Officer has a chance to discuss reimbursement with you
before your attorney begins to do significant work. AMC reserves the right not to reimburse
your legal fees, even if you think that AMC should do so. Therefore, it any government agent
contacts you, you should discuss the involvement of your attorney in an investigation with the
Compliance Officer immediately.
If you learn of a subpoena or pending, imminent or contemplated litigation or
government investigation, you should immediately contact AMC’s Compliance Officer or its
legal counsel. You must retain and preserve ALL records that may be responsive to the
{2165.00001/MM634509.DOC, Ver. 3}
- 18 -
subpoena, or are relevant to the litigation, or that may pertain to the investigation, until you are
advised as to how to proceed. You must not destroy any such records in your possession or
control. You must also affirmatively preserve from destruction all relevant records that without
intervention would automatically be disposed of (destroyed or erased) such as e-mails and
voicemail messages. Destruction of such records, even if inadvertent, could seriously prejudice
AMC. Any questions regarding whether a particular record pertains to a pending, imminent or
contemplated investigation or litigation or may be responsive to a subpoena or regarding how to
preserve particular types of records should be directed to AMC’s Compliance Officer or its legal
counsel.
VII.
CONFIDENTIALITY AND HIPAA COMPLIANCE
We trust our employees, contractors and agents with a wide spectrum of valuable
information, and we all share a responsibility for keeping this information confidential. This
confidential information is and remains the sole property of AMC. Upon accepting employment
with AMC or during the course of your employment, you may have been asked to sign an
employment agreement which generally provides that you will not disclose or use any AMC
confidential information, either during or after your employment. You are required to be familiar
with, and abide by, the terms of that agreement.
A.
Types of Information To Keep Confidential
All officers, employees and contractors of AMC are responsible for maintaining AMC’s
confidential information, examples of which include, but are not limited to:
a. Product testing information;
b. Business improvements, processes, marketing, and selling;
c. Business plans, whether pursued or not;
d. Ideas;
e. Computer materials, such as programs, instructions, source and object code, and
printouts;
f. Budgets and unpublished financial statements;
g. Licenses;
h. Pricing, pricing strategy, and cost data;
i. Information regarding the medical condition, skills and/or compensation of employees or
contractors of AMC;
j. The identities of AMC’s clients, potential clients, customers, and potential customers
(collectively, “Customers”);
{2165.00001/MM634509.DOC, Ver. 3}
- 19 -
k. The identities of contact persons at Customer locations;
l. Particular preferences, likes, dislikes, and needs of our Customers and contact persons,
with respect to products, pricing, sales calls, timing, sales terms, service plans, methods,
practices, strategies, forecasts, know-how, and other marketing techniques;
m. The identities of key accounts, potential key accounts, and Customers you have
successfully cultivated or maintained during your employment at AMC;
n. The identities of AMC’s suppliers and contractors, and all information about those
supplier and contractor relationships, such as contacts, pricing, and other terms; and
o. Protected Health Information (“PHI”).
If someone outside AMC or your department asks you questions about confidential AMC
information, you are not required to answer. If you are concerned about the appropriateness of
giving out certain information, refer the request to your manager.
Your obligation to treat information as confidential does not end when you leave AMC.
You must not disclose confidential information to a new employer or to others after ceasing to be
an AMC employee.
You may not disclose your previous employer’s confidential information to AMC. Of
course, you may use general skills and knowledge acquired during your previous employment.
B.
Confidentiality Agreements
Confidentiality Agreements are commonly used when AMC needs to disclose
confidential information to suppliers, consultants, joint venture participants, or others. A
Confidentiality Agreement puts the person receiving confidential information on notice that he or
she must maintain the secrecy of such information. If, in doing business with persons not
employed by AMC, you foresee that you may need to disclose confidential information, you
should call the AMC Compliance Officer and discuss the utility of entering into a Confidentiality
Agreement.
C.
Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)
Compliance
As described in more detail in AMC’s HIPAA Compliance Plan, the HIPAA Rules
include “Standards for Electronic Transactions and Code Sets” (the “Transactions Rule”), which
governs how certain entities provide billing and related services on behalf of their clients, and
related standards governing “Privacy of Individually-Identifiable Health Information” (the
“Privacy Rules”), and also rules governing the use of electronic patient information (the
“Security Rules”). Generally, AMC is not considered a “covered entity” for purposes of the
HIPAA Rules. Although AMC may not currently meet the definition of a HIPAA covered
entity, it nonetheless undertakes significant measures to protect the privacy and security of any
patient health information (“PHI”) it encounters in connection with its business operations,
{2165.00001/MM634509.DOC, Ver. 3}
- 20 -
including the training of AMC employees, implementing appropriate security measures to
protect the security of confidential information, including patient health information. As
AMC’s business evolves, it will continue to update its HIPAA Policy to ensure it remains in
compliance with all applicable regulatory requirements.
AMC’s Compliance Officer is the compliance official responsible for overseeing AMC’s
HIPAA Rules compliance efforts. As described more fully in AMC’s HIPAA Compliance Plan,
if a question or issue arises concerning the application of the HIPAA Rules to AMC’s business,
or if you become aware of activities or practices that may violate the HIPAA Rules or AMC’s
commitments to its customers related to the HIPAA Rules, you must report these issues to
AMC’s Compliance Officer.
VIII. RESPONSIBILITY TO ONE ANOTHER
A.
Respecting One Another
The way we treat each other and our work environment affects the way we do our jobs.
All employees want and deserve a workplace where they are respected and appreciated.
Everyone who works for AMC must contribute to the creation and maintenance of such an
environment, and supervisors and managers have a special responsibility to foster a workplace
that supports honesty, integrity, respect and trust.
B.
Employee Privacy
We respect the privacy and dignity of all individuals. AMC collects and maintains
personal information that relates to your employment, including medical and benefit information.
Special care is taken to limit access to personal information to AMC personnel with a need to
know such information for a legitimate purpose. Employees who are responsible for maintaining
personal information and those who are provided access to such information must not disclose
private information in violation of applicable law or in violation of AMC’s policies.
Employees should not search for or retrieve items from another employee’s workspace
without prior approval of that employee or management. Similarly, you should not use
communication or information systems to obtain access to information directed to or created by
others without the prior approval of management, unless such access is part of your job function
and responsibilities at AMC.
Personal items, messages, or information that you consider to be private should not be
placed or kept in telephone systems, computer or electronic mail systems, office systems, offices,
work spaces, desks, credenzas, or file cabinets. AMC reserves all rights, to the fullest extent
permitted by law, to inspect such systems and areas and to retrieve information or property from
them when deemed appropriate in the judgment of management.
C.
Equal Employment Opportunity and Nondiscrimination
{2165.00001/MM634509.DOC, Ver. 3}
- 21 -
As part of our commitment to integrity, respect, and excellence, AMC is an equal
employment opportunity employer, and all employees share in the responsibility for ensuring
that these standards are met. Employment decisions are based solely on merit and business needs
and not on race, color, gender, age, sexual orientation, personal appearance, religion, creed,
national origin or ancestry, citizenship, physical or mental disability, pregnancy, childbirth or
related medical conditions, other medical conditions, genetic tests or characteristics, veteran or
military status, marital or familial status, political affiliation, or any other factor protected by
law.
D.
Compliance with The Americans With Disabilities Act
AMC also complies with all relevant provisions of the Americans with Disabilities Act
(ADA). That means we do not discriminate against any qualified employee or job applicant
concerning any terms, privileges, or conditions of employment because of a person’s physical or
mental disability. We will also make reasonable accommodation, wherever necessary, for all
employees or applicants with disabilities, as long as the individual is otherwise qualified to
safely perform the essential duties of the job and provided that any accommodations made do not
impose an undue hardship on AMC.
E.
Sexual and Other Forms of Harassment
As part of our commitment to integrity, respect and accountability, AMC is committed to
providing a work environment that is free of unlawful discrimination and harassment. AMC
strictly prohibits harassment of any kind, including harassment on the basis of race, color,
gender, age, sexual orientation, personal appearance, religion, creed, national origin or ancestry,
citizenship, physical or mental disability, pregnancy, childbirth or related medical conditions,
other medical conditions, genetic tests or characteristics, veteran or military status, marital or
familial status, political affiliation, or any other characteristic protected by law. This policy
applies to all employees, supervisors, management, vendors, clients, and customers of AMC.
{2165.00001/MM634509.DOC, Ver. 3}
- 22 -
IX.
MISCELLANEOUS FINANCIAL AND BUSINESS-RELATED POLICIES
A.
Side Letters
All terms and conditions of contractual arrangements must be contained within the body
of the contract. Any customer communications that obligate AMC to terms and conditions
outside the scope of the contract and/or modify such previously contracted terms and conditions
are considered side letters. Side letters are not tolerated, and are grounds for immediate
termination of employment. It is not feasible to describe every type of side letter. However, the
following are some examples of customer communications that would be considered a side
letter:
•
A promise to include free, or significantly discounted, products or services.
•
Any statement that contradicts payment terms stipulated in the contract.
•
Any statement that provides for a contingency to the contract (e.g., requiring Board of
Directors approval).
•
Any guarantee of product delivery/performance outside scope of contract.
•
Providing acceptance criteria.
This is not an exclusive list of side letters. Any customer communications that could be
considered a side letter should be reviewed by the AMC Compliance Officer prior to delivery.
B.
Contract Development
All contracts must be drafted using the corporate-approved standard contract templates.
Any changes to the templates must first be approved through AMC’s Compliance Officer.
Contract signatures must be dated on the actual date the contract is executed by each party. For
example, if a contract is signed by the customer on March 31st, and was received by AMC on
March 31st, but could not be signed until April 1st, the date of AMC’s signature must be April 1.
Any evidence of backdating is immediate grounds for termination of employment.
C.
Company Books and Records
You should complete all AMC documents accurately, truthfully, and in a timely manner,
including all travel and expense reports. When applicable, documents must be properly
authorized. You must record AMC’s business and financial transactions in strict compliance with
all applicable laws and accounting practices. The making of false or misleading entries, records
or documentation is strictly prohibited. You must never create a false or misleading report, make
a payment, or establish an account on behalf of AMC with the understanding that any part of the
payment or account is to be used for a purpose other than as described by the supporting
documents.
D.
Business Communications
{2165.00001/MM634509.DOC, Ver. 3}
- 23 -
All business records and communications should be clear, truthful and accurate. Business
records and communications may become public through litigation, government investigations
and the media. You should take care to avoid exaggeration, colorful language, guesswork, legal
conclusions and derogatory remarks or characterizations of people and other companies. This
applies to communications of all kinds, including e-mail and informal notes or memos. Records
should always be retained and destroyed according to AMC’s record retention policies.
E.
Record Retention
AMC is committed to compliance with all applicable laws and regulations relating to the
preservation of records. Under no circumstances are AMC records to be destroyed selectively,
or are they to be maintained outside of AMC premises or its designated storage facilities.
If you learn of a subpoena or pending, imminent or contemplated litigation or
government investigation, you should immediately contact AMC’s Compliance Officer or its
legal counsel. You must retain and preserve ALL records that may be responsive to the
subpoena, or are relevant to the litigation, or that may pertain to the investigation, until you are
advised as to how to proceed. You must not destroy any such records in your possession or
control. You must also affirmatively preserve from destruction all relevant records that without
intervention would automatically be disposed of (destroyed or erased) (such as e-mails and
voicemail messages). Destruction of such records, even if inadvertent, could seriously prejudice
AMC. Any questions regarding whether a particular record pertains to a pending, imminent or
contemplated investigation or litigation or may be responsive to a subpoena or regarding how to
preserve particular types of records should be directed to AMC’s Compliance Officer or its legal
counsel.
X.
IMPLEMENTATION OF THE CODE
A.
Contact Information
This Code cannot provide definitive answers to all questions. If you have questions
regarding any of the policies discussed in this Code or if you are in doubt about the best course
of action in a particular situation, you should seek guidance from your supervisor, AMC’s
Compliance Officer, its legal counsel, or the other resources identified in this Code.
Contact information for AMC’s Compliance Officer is as follows:
Steve Rissberger
28050 S.W. Boberg Road
Wilsonville, Oregon 97070
(503) 218-4758
[email protected]
Contact information for AMC’s legal counsel is as follows:
{2165.00001/MM634509.DOC, Ver. 3}
- 24 -
David Robbins, Esq.
Bennett Bigelow & Leedom, P.S.
1700 Seventh Ave. Suite 1900
Seattle, WA 98101
(206) 622-5511
[email protected]
B.
Reporting Known or Suspected Violations of the Code
Each employee, contractor or agent of AMC is responsible for abiding by AMC’s Code.
In addition, all supervisory personnel are responsible for compliance by those they supervise.
Any individual who is aware of, or suspects, any violation or law or of any policies and
procedures, may make an appointment to meet with the Compliance Officer to discuss the matter
to may notify the Compliance Officer of the incident. Instead of asking for a meeting, you can
also use the Compliance hotline to contact the Compliance Officer. The Compliance Officer will
determine whether cause exists for further investigation or action on the matter. Neither the
Compliance Officer nor AMC shall take any form of retribution against the person for making a
good faith disclosure.
If a question or issue arises concerning the application of the Code, or if you become
aware of activities or practice that may violate the Code, you must follow the guidelines set forth
below:
1.
You must contact your manager or supervisor (if you believe that s/he was not
involved in the matter) or the Compliance Officer immediately by telephone or in
writing to request assistance or to report suspected improper activities or practice.
If your manager or supervisor was involved in the incident, you must contact the
Compliance Officer. If you wish to make your reporting on an anonymous basis,
you may also contact AMC’s toll-free compliance hotline, which is serviced by a
third party vendor. AMC’s hotline number is published in its Compliance Hotline
Policy and Procedure..
2
The Compliance Officer or your manager or supervisor will respond promptly to
your questions or comments. The Compliance Officer may seek the advice of
AMC’s legal counsel, or may direct you to discuss your questions or issues
directly with legal counsel.
Any information that you provide concerning these matters will be kept in
confidence between you, the Compliance Officer, your manager or supervisor,
legal counsel and senior management of AMC, to the extent feasible and legal. In
the event of a government investigation or lawsuit, or if the need otherwise arises
for AMC to disclose the information, however, such information may be
disclosed.
{2165.00001/MM634509.DOC, Ver. 3}
- 25 -
Neither AMC, nor any of its officers or employees, will take adverse action
against any person for reasonably requesting assistance from the Compliance
Officer, or reporting in good faith potential violations of the Code to the
Compliance Officer, a manager, a supervisor, or AMC’s legal counsel.
3.
You should not seek assistance from, or report suspected improper activities or
practices to, your family friends or anyone else, without first reporting the matter
to the Compliance Officer, your manager or supervisor, or to AMC’s legal
counsel and then allowing AMC a reasonable opportunity to conduct an
appropriate investigation and take action to correct the problem.
4.
AMC intends that every officer, employee, contractor and agent of AMC will
read, understand and comply with these guidelines for identifying and reporting
potential violations of AMC’s Code. Failure to report potential violations of the
Code to your manager or supervisor, the Compliance Officer or AMC’s legal
counsel may subject you to discipline, or to other sanctions.
The Compliance Officer will make the final determination as to whether a violation of the
Code has taken place. If the Compliance Officer determines that a violation has occurred, the
Compliance Officer will disclose such fact to the Board of Directors, and the Chief Executive
Officer, as appropriate. In consultation with AMC’s legal counsel, the Compliance Officer will
be responsible for determining the steps that need to be taken to respond to the offense and to
prevent similar occurrences in the future. A list of recommended actions will be submitted to the
Board of Directors or the Chief Executive Officer (as the case may be) within thirty (30) days of
the date that the Compliance Officer first learns of the issue unless additional time is reasonably
required.
C.
Compliance Hotline
AMC has a 24-hour telephone hotline which you can use to report violations of AMC’s
policies or other possible illegal or unethical activity. The number is published in AMC’s
Compliance Hotline Policy and Procedure. You may report suspected violations to the hotline
anonymously; however, doing so could make your report more difficult to investigate and
address your concerns. Providing your name and contact information will allow AMC to contact
you if necessary during any investigation. Whether you provide your name or not, the identity of
any employee who makes a good faith report or inquiry will be protected within the constraints
of legal requirements and feasibility. AMC will not tolerate retaliation against any employee who
calls the hotline with an ethical or legal concern. If the Hotline is, for any reason, unavailable or
malfunctioning, please contact the Compliance Officer directly at the number provided above.
D.
Discipline for Violations
This Code will be enforced at all levels, fairly and without prejudice.
AMC intends to use every reasonable effort to prevent the occurrence of conduct not in
compliance with its Code and to halt any such conduct that may occur as soon as reasonably
{2165.00001/MM634509.DOC, Ver. 3}
- 26 -
possible after its discovery. In the event of any infraction of the Code or AMC policies and
procedures, the responsible officer, employee, contractor or agent shall be subject to appropriate
disciplinary action as determined by the Compliance Officer, who is the Board of Director’s
designee to handle these matters. Appropriate disciplinary action will be taken against all
individuals involved.
Notwithstanding any other agreement or representation to the contrary, any violation
(either by action or inaction) of the Code or AMC’s policies and procedures (including the
standards set out in this Code) will subject an officer, employee, contractor or agent to
disciplinary action, which may include, without limitation, termination of the individual’s
employment, engagement, or affiliation with AMC.
Remember: This Code of Business Conduct and Ethics
sets forth fundamental ethical and legal principles
governing the way that AMC does business. Ultimate
responsibility to assure that we as a company comply with
the many laws, regulations and ethical standards affecting
our business rests with each of us. Become familiar with,
and conduct yourself strictly in compliance with those
laws, regulations and standards, as well as AMC’s policies
and guidelines relating to them.
{2165.00001/MM634509.DOC, Ver. 3}
- 27 -