JO - Health Care Compliance Association

Investigations 101 ...continued from page 38
Fifth, it minimizes any bias or preconceived
notions that the investigator or person reporting
the potential violations may have relative
to the witness. Sixth, it helps the investigator
evaluate credibility. And finally, it limits the
witness’ ability to testify differently in a future
legal proceeding.
Evaluate credibility, bias, and motive
Another important but often overlooked
factor when conducting interviews is to assess
witness credibility, motive, and bias—especially
for those accused of and those reporting
violations. Unfortunately, there are occasions
when employees falsely report violations.
For example, a chronically poor-performing
employee, who knows he is about to be
terminated, may accuse his manager of billing
improprieties to try and suggest that the
expected discipline is retaliatory.
A key to evaluating witness testimony, if possible,
is for the investigator to interview each
witness in person to observe demeanor, facial
expressions, and body language. However,
depending on an organization’s size, structure,
and geography, this may be impractical. If
face-to-face interviews are not possible, the
compliance officer should consider having an
HR representative or another management
member accompany the employee during a
phone interview and assist in assessing these
crucial elements. In general, it may be a good
idea to perform all compliance investigations
jointly with an HR representative or another
management member.
Always maintain composure
Compliance officers should prepare for the
unexpected—indignant employees who refuse
to answer questions, emotional outbursts,
the cathartic admission, the “I can’t remember
anything,” and the “yes/no” responder.
However, no matter how rude, evasive, or indignant
an employee may be, always maintain
composure and treat employees with dignity
and respect. If an employee threatens physical
harm, the compliance officer should terminate
the interview and immediately contact
HR or Corporate Security. Additionally, avoid
making rash comments or decisions based on
emotion. In some cases, employees who know
the organization has solid evidence against
them may behave offensively to trigger an irrational
response. By maintaining composure
and control during all interviews, Compliance
officers will eliminate an employee’s potential
claim that the organization acted arbitrarily,
improperly, or unfairly.
Always interview those accused
On occasion, the compliance officer may
receive credible information that appears
to conclusively prove that an employee has
violated a compliance policy. For example, a
well-respected employee with an impeccable
record discovers and turns over documents
prepared by a chronically poor-performing
employee that appear to be incontrovertible
evidence of a compliance violation. Based
on the information source and the alleged
author’s reputation, a compliance officer’s
initial reaction may be to contact the HR department
and the employee’s manager to set
up a termination meeting. Although termination
may be likely in this example, failing to
interview the employee is a mistake.
Unless compelling reasons are present (e.g.,
threats of physical violence), compliance
officers should always interview those accused
of violations to obtain their side of the story.
Strategy may dictate when to perform the
interview—some prefer to interview the
accused first, others as the last interview. My
preference is to interview those accused last,
as my experience has been that I am better
prepared to ask relevant questions if I already
have a general understanding of the issues and
circumstances. It also is advisable to inform
those accused that follow-up questioning may
be necessary.
Interviewing those accused of violations is a
matter of fundamental fairness and probably
consistent with most organization’s values. In
some cases, it is quite possible that the employee
may provide a legitimate explanation Others
may admit to the allegations or offer such a
poor excuse that the disciplinary action originally
contemplated will be more than justified.
Likewise, failing to interview the accused can
undermine the Compliance Department’s
credibility and can perpetuate negative perceptions
about the investigative process. Finally,
this omission may ultimately help an otherwise
poor performer establish a discrimination
or retaliation claim against the organization.
The employee will “spin” the facts and suggest
that the organization deviated from standard
practice and “rushed to judgment” to “prevent
the real truth from being told.”
Take detailed notes
Compliance officers must take detailed notes
of each interview, as they ultimately are
responsible for justifying the actions or inactions
taken relative to the investigation. Additionally,
all facts are important and should
be captured—oftentimes, facts that initially
appear to be unimportant turn out to be key
pieces of evidence. Finally, because the issues
under investigation may become the subject
of future legal proceedings, compliance officers
should avoid hyperbole, inflammatory
or derogatory statements, and defamatory
characterizations of employees.
Review pertinent documentation
Most investigations require some document
review (e.g., computer records, training
acknowledgements, billing invoices, patient
records, physician orders). It is imperative
to review these records, as they are the best
evidence of whether a violation has occurred.
September 2006
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