JO - Health Care Compliance Association

More documents

Recommendations

Info

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 40 Health Care Compliance Association • 888-580-8373 • www.hcca-info.org
They also are extremely credible and have no bias or improper motive. Finally, records are invaluable in helping establish timelines and event chronologies. Consider employee suspensions pending investigation Some allegations may warrant removing employees from the work site pending the investigation’s completion. A typical example involves the threat of continuing harm to the organization if immediate action is not taken to remove a problem employee. Prior to suspending an employee, the compliance officer should consult with the Legal or HR departments for guidance on the suspension and whether it should be with or without pay. In many cases, state laws and the employee’s job classification—exempt versus nonexempt—may impact this decision. Conservative organizations generally suspend accused employees with pay because it affords the presumption of innocence and also protects those exonerated of wrongdoing. It also undermines any argument that the company “rushed to judgment” or acted arbitrarily. Concluding the investigation Compliance officers frequently ask how they will know when they have thoroughly investigated a matter. Although each investigation is different, I often answer this question by having compliance officers imagine that they have been chosen as a juror to hear evidence related to the incident they will be investigating. As a hypothetical juror, I ask them to assume that as a result of their investigation, they will confirm a compliance violation has occurred, that the company will terminate those responsible, and additionally, a regulatory agency will pursue sanctions against the company for the compliance infractions. As a juror hearing evidence on whether the organization acted reasonably under the circumstances, what evidence and information would they need to reach a verdict? Who would they expect to testify at the trial? What expectations would they have of the organization? What expectations would they have of the terminated employees? Also, what actions would they have expected the organization to have taken before, during, and after the incident in question? Chances are, these questions and answers probably mirror the questions and answers compliance officers need to obtain during their investigation. And, when asked and answered, the investigation likely is finished. Determining appropriate remedial actions. Upon concluding all interviews and evidence gathering, the final step is to evaluate the evidence and implement any necessary remedial measures. Compliance officers should remember that remedial measures involve more than employee discipline. They include anything a reasonable organization would do to remedy and prevent violations. For example, such actions may include employee re-education, auditing, modifying business practices, making refunds, and identifying and eliminating root causes. In many ways, determining remedial actions for compliance infractions is analogous to completing a jigsaw puzzle. In a perfect world, all evidentiary “pieces” will be present to complete the “picture.” In these circumstances, appropriate remedial measures are easy to determine. Unfortunately, there are many occasions when the investigation is missing one or more key pieces and a complete picture is not attainable. In these cases, the organization still may be obligated to take corrective actions depending on the pieces present and the picture assembled. What is important to remember, especially when determining employee discipline, is that violations do not have to be proven beyond a reasonable doubt. The standard is one of reasonableness and whether or not it is likely that a violation occurred. Therefore, if it appears that a violation likely occurred, the compliance officer should work with management to ensure remedial measures are taken proportionate to the evidentiary findings and consistent with past precedent. Conclusion In today’s regulatory environment, it is crucial for health care providers to quickly investigate and remediate confirmed compliance infractions. In doing so, these organizations will fulfill key elements of the FSGs as well as strengthen and enhance the credibility of their own compliance programs. n 1.) United States Sentencing Commission (USSC), Guidelines Manual, Chapter 8 – Sentencing of Organizations. 2.) USSC Guidelines Manual, Chapter 8, B2.1(b) (4) – (6). 3.) OIG Model Compliance Plan for Clinical Laboratories, 62 Fed. Reg. 9435, March 3, 1997. See also, OIG Compliance Program Guidance for Hospitals, 63 Fed. Reg. 8987, February 23, 1998. 4.) This article presumes the compliance officer is not an attorney. Call for Authors Interested in submitting an article for publication in Compliance Today? Send an email to Margaret Dragon margaret.dragon@hcca-info.org. IMPORTANT: HCCB awards 2 CEUs to authors of articles published in Compliance Today for CHC certification. Upcoming Deadlines: • September 11 - November Issue • October 12 - December Issue • November 1 - January 2007 Issue • December 1 - February 2007 Issue Thank you for your time and attention. We look forward to hearing from you and reading your articles. Health Care Compliance Association • 888-580-8373 • www.hcca-info.org September 2006 41
Page 1 and 2: Volume Eight Number Nine September
Page 3 and 4: ASK John asks the leadership your q
Page 5 and 6: the Health Care Compliance Associat
Page 7 and 8: Health Care Compliance Association
Page 11 and 12: You’re a compliance professional,
Page 13 and 14: A-110, or applicable regulation. n
Page 15 and 16: ogy, human resources, Erickson Adva
Page 19 and 20: is to make your hotel reservations
Page 21 and 22: September 2006 Health Care Complian
Page 25 and 26: those that have already enrolled in
Page 27 and 28: New Medicare enrollment regulations
Page 29 and 30: New Medicare enrollment regulations
Page 33 and 34: properly documented IRB or Privacy
Page 35 and 36: ment, on the theory that although d
Page 37 and 38: The Health Care Compliance Associat
Page 39: Register Today! Physician Practice
Page 43 and 44: FYI ...continued from page 22 Sterr
Page 45 and 46: ■ William Munson, North Colorado
Page 47 and 48: ® SMART2.o : bringing HIM people a

JO - Health Care Compliance Association

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?