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BACK TO BASICS For gathering facts, nothing beats 16 Conduct- August 2002 there is no substitute for facts. allow. If you think a person has said ing a Compliance Interview speaking directly with an individual involved in the alleged non-compliance. Interviews, therefore, are vital parts of By Ryan D. Meade investigations and can make or break the integrity of the investigation report Editor’s note: Ryan Meade is a partner in the Chicago office of the law firm Michael Best & Friedrich. Mr. Meade is as well as the government’s perception of the competency of the compliance staff and program. also adjunct professor of law in the Health Law Institute at Loyola University of Chicago Law School. He may be reached at 312/222-6686 or rdmeade@mbf-law.com You don’t have to be a lawyer to conduct a compliance interview, but a few tips from a lawyer might not hurt. Interviewing to get at facts is not an easily taught skill. It is mostly learned When the Department of Health and Human Services’ Office of Inspector through experience and the awkward trial and error method. General (OIG) issued its “Compliance Program Guidance for Hospitals” (63 FR 8987) in 1998, it set out the basic seven elements the OIG expected to see in an effective compliance program. One of those elements was stated as: Development of a system to respond to allegations of improper/illegal activities and the enforcement of appropriate disciplinary action against employees who have violated internal compliance policies, applicable statutes, regulations, or Federal health care program requirements. Id. At 8989. Investigations are critical for getting a handle on what has gone wrong or to support a determination that nothing has gone wrong. Investigations should be quick, yet thorough. Investigations should be focused on gathering facts. There may be a time for pointing fingers, but initially it is more critical to get to the bottom of things. It is a simple concept which is often forgotten: Below are tips for conducting compliance interviews. They are not by any means exhaustive and they are not in any particular order of importance. Most of them constitute plain old-fashioned common sense, but often common sense approaches can be lost in the heat of the moment or can go unrecognized unless articulated. Some of the following also reflect the author’s own personal style of interviewing so that the reader may need to adjust these tips to meet the unique circumstances of an interview or investigation. 1. Take copious notes Few of us have photographic memories and few of us are able to keep in the forefront of our mind all the different views on the same set of facts. It doesn’t take many interviews before an interviewer gets confused as to who said what about an event. Focus on the person you are interviewing and take as many notes as time and circumstances RYAN D. MEADE something particularly important, write down the person’s words verbatim. Don’t be embarrassed to pause the interviewee and repeat the quote back to him or her to ensure you have recorded the words precisely. 2. Don’t tape an interview Written notes are preferable to recorded voice tapes. Taping voices picks up all words, even those which might be corrected later on in the interview and possibly heard (or played) out of context. Also, in those instances in which it is legitimate to erase tapes, erased recordings are often found to be not as successfully erased as the erasor presumes. Technology grows by leaps and bounds such that techniques exist that can sometimes recover voices from cassette tapes that are presumed to be erased with magnets. Additionally, digital voice recordings may leave a recoverable, electronic impression on the computer system supporting the recordings. If anything has been placed on a computer, the document usually exists forever as stored or “backed-up” somewhere. As a practical suggestion for any recording, be sure you want to create an inextinguishable document before you create it.
3. Have a witness! Do interviews with yourself when accused of wrongdoing. do two people remember the exact a partner When people are confronted with an same set of facts the same way. Just A team of two is always a good idea accusation of personal liability, then he because a person’s memory may seem- when conducting a compliance inter- or she typically become more selective ingly contradict another person’s mem- view. Not only is a witness important to in the facts that are revealed. Try to ory does not mean that one of the indi- help substantiate what a person said at avoid conclusions of wrongdoing dur- viduals is lying. Each person may have a particular interview, but the witness is ing the interview and stick to the facts. witnessed the same set of facts from a also valuable should the interviewee different angle, so to speak, so that allege that something unsavory 6. Ask job employment and education assembling all the angles constructs the occurred during the interview (e.g., history–get a sense of the intervie- best view of an event. Plus, under some harassment or threats of retaliation). wee’s background circumstances, attempting to influence The interviewee’s background is rarely a a person’s memory could be considered 4. Put a person at ease: Strike a determinative factor in getting at the obstruction of justice. balance between casual conversation facts surrounding an allegedly improper and formality activity. Nevertheless, job employment 9. Identify what is the interviewee’s There is no way around the fact that and educational history can provide a personal knowledge versus knowl- most people are nervous when they are context in which to evaluate whether edge learned from other people being interviewed in the course of an the requisite intent or breach of duty This is a matter of parsing out ambigu- internal investigation. Try to put the existed so as to raise a simple mistake to ous sources of information. Often peo- person at ease. While it is not appropri- that of a civil false claim or worse, a ple will state a fact as if they know the ate for the interview to be excessively crime. In some circumstances, an inves- information first hand, but when you casual so that it is indistinguishable tigation can rule out criminal intent press further it is revealed that the from a chat with your best friend over a when it is clear that a person submitted information is nothing more than cup of coffee, nevertheless the interview an erroneous claim not for nefarious hearsay. If a person “understands” a fact need not be a star chamber interroga- purposes but as the result of lack of to be true, press him or her on how he tion. Try chatting briefly about innocu- education and training. or she knows it to be true. Likewise, if a ous topics at the beginning of the inter- person “heard” a fact, press him or her view to set the person at ease. Consider 7. Don’t assume the interviewee has on who the source of the information asking about the person’s weekend or the same level of knowledge as is. their children or a local topic of inter- you–ask basic questions to establish est. Often times a person can be put at the person’s understanding 10. Have the interviewee clarify ease if the interviewer is simply friendly. It may be important to ask individuals ambiguous pronouns (the infamous for their understanding of very rudi- “they”) 5. Never criticize the interviewee mentary operations, even of high-level Never let an ambiguous “they” go by. during the interview management. This line of questions is Press the interviewee as to who the Remember that in an investigation, the used not so much as a vehicle for the “they” is. Don’t assume you know who goal is to gather facts. You can make a interviewer to understand the subject in “they” are. judgment about the meaning of those question but as a means to gauge the facts later, but when interviewing, keep level of a person’s personal level of cul- 11. Let the interviewee talk–don’t your eyes on the prize: facts. Criticizing pability and the institutional intent interrupt! the interviewee or expressing judge- involved in an activity. Interviewees will likely be nervous and ments during interviews can cause the they will likely feel more at ease the likely already agitated person to retreat 8. Don’t attempt to correct or influ- more they talk. It is also important to inward, closing off fact-finding oppor- ence the person’s memory let the interviewee talk virtually without tunities. It’s human nature to defend Let memories be what they are. Rarely Continued on page 18 17 August 2002
Page 1 and 2: Volume Four/Number Eight August 200
Page 3 and 4: DON’T MISS OUT! ON THE CALENDAR U
Page 5 and 6: FOCUS ON ETHICS & COMPLIANCE Compli
Page 7 and 8: system. Other advantages include ea
Page 9 and 10: uation as unique. The divide and co
Page 11 and 12: By Norman Radies Editor’s note: N
Page 13 and 14: feature article Editor’s note: Th
Page 15: there are so many issues that have
Page 19 and 20: leagues. Physicians can hear the me
Page 21 and 22: Alyse Hutchinson, Associate Complia
Page 23 and 24: many tasks forces as they deemed ap
Page 25: Editor and Publisher: Margaret R. D

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