Investigations 101 ...continued from page 36 outside of the organization need to be interviewed (e.g., clients, former employees), the compliance officer should first consult with the Legal and or Human Resources (HR) departments. Regarding investigative strategy, experienced investigators may differ on the exact steps or sequence to be followed, although almost all will agree that speed, objectivity, and thoroughness are paramount to success. Employee interviews: Minimizing intimidation As a preliminary matter, compliance officers should recognize that compliance investigations can be an intimidating experience and that, if performed in a heavy handed manner, can impact the investigation and undermine the credibility of both the <strong>Compliance</strong> department and the investigative process. It is also important to remember that many employees interviewed during compliance investigations have done nothing wrong. Therefore, compliance officers should take steps to minimize the daunting perceptions surrounding the process and constantly reinforce its importance. One way to accomplish these goals is for compliance officers to begin all interviews by introducing themselves, explaining their job responsibilities, the investigative process, and finally, their specific role in the investigation—that of objective fact finder. If applicable, they may also share that others will be interviewed during the investigation. In my experience, this simple introduction helps reduce anxiety by diverting attention away from the investigation and by reinforcing that the investigator and process are fair. During this introduction, compliance officers also should establish ground rules, specifically the need for confidentiality. <strong>Compliance</strong> officers should be aware that even if an attorney performs or directs an investigation, it does not automatically mean the matter will be privileged. For example, some courts have ruled that no privilege exists for matters performed or directed by in-house counsel on the basis the work was performed in the ordinary course of business and not to provide legal advice. It is important to stress that the employee is not to discuss the investigation with anyone without prior approval. The compliance officer should explain that this is a reciprocal obligation with one exception— that the investigative findings will be shared with those who have a “need to know” for the purpose of determining any necessary corrective measures. This admonishment is essential to protect the reputation of those accused of violations, to preserve the investigation’s integrity by preventing witness tampering and collusion, and to help identify “chain of command” issues, (i.e., whether the employee acted independently or at the direction of a superior). Finally, before beginning formal questioning, it may be helpful to ask a few simple background questions (e.g., about the employee’s tenure, current supervisor, and brief description of current job duties). Again, such questions are easy to answer, help put the employee at ease, serve as a good transition into the actual interview, and in many cases, help compliance officers quickly assess the employee’s job experience and compliance sophistication. Questions for the formal interview In each interview, compliance officers should allow employees to explain events in their own words and avoid asking questions that suggest a particular answer. If possible, they should start with broad, general questions and narrow the questioning as necessary, depending on the employee’s responses. For example, if requested to investigate an allegation that a sales employee offered Super Bowl tickets to Dr. Smith in violation of the organization’s gift and entertainment policy, the compliance officer should avoid making the first and only question “It has been reported that you lavishly entertained Dr. Smith at the Super Bowl—did you?” Instead, the compliance officer should begin the questioning broadly. One initial question could be to ask the employee to explain the company’s gift and entertainment policy. Depending on the response, the next question may be to ask for examples of past entertainment, how frequently the employee entertains clients at sporting events, and so on, until the specific question is either asked or answered. A seasoned investigator also attempts to clarify ambiguity in a witness’ answers. Using the example above, if the employee acknowledged entertaining Dr. Smith “a while ago,” the investigator should clarify this answer, if it’s relevant to the investigation. In such cases, provide clarifying parameters. In this example, ask if “a while ago” means more than three years ago, between one and three years, and so on, until the witness narrows the time frame. If the witness remains evasive, document each attempt to clarify and the non responsive or ambiguous answers. This interviewing technique is critical for several reasons. First, it allows witnesses to explain the facts in their own words. Second, it allows the investigator to evaluate the witness’ understanding of the policy, issue, or event in question. Third, it prevents the investigator from consciously or unconsciously steering the investigative conclusion to support a preexisting theory of what may or may not have happened. Fourth, the witness may divulge unexpected information or admit to compliance violations that were otherwise unknown. Continued on page 40 September 2006 38 <strong>Health</strong> <strong>Care</strong> <strong>Compliance</strong> <strong>Association</strong> • 888-580-8373 • www.hcca-info.org
Register Today! Physician Practice <strong>Compliance</strong> Conference October 1–3, 2006 Renaissance Parc 55 Hotel San Francisco, CA SAVE $250 Register by September 6 for a $50 early discount plus $200 pre-conference for free! Hot Topics • The future of health care compliance as related to physicians • Current government initiatives in the field of health care compliance specific to physicians and group practices • Quality of care issues, training, and residency compliance issues • How the information acquired applies to their professional responsibilities For more information, visit www.hcca-info.org or call (888) 580-8373 <strong>Health</strong> <strong>Care</strong> <strong>Compliance</strong> <strong>Association</strong> • 888-580-8373 • www.hcca-info.org September 2006 39
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