Sharon Parsley, JD, MBA, CHC, CHRC, writes a monthly series on compliance officer effectiveness for the YouCompli blog.
Over the course of my career in compliance, I have been involved in hundreds of investigations. Some of them went well and were brought to a logical and timely conclusion. Many of them ended up taking numerous unpredictable twists and turns, but eventually got to a rational outcome. A few of them, unfortunately, were a circus from start to finish.
No doubt we all know the basic steps involved in investigating a known or suspected compliance issue. First is intake, then gather and review relevant documents and information, conduct interviews, assess, and report findings. But we also all know that there is a lot of nuance in that basic outline. Over the next two months I will look at lessons I have learned from investigations that have not gone according to plan. First up: Making sure you are starting the investigation off right.
1. Ensure that you have a clear understanding of the concern before proceeding.
Sounds obvious, right? I have been responsible for investigations that went off the rails early on as the investigator did not clarify the concern adequately to properly scope and plan the investigation. If you do not have adequate information to assess whether the allegation, if factually accurate, represents a violation of law, regulation, or policy, you need to dig further before proceeding. For anonymously reported concerns, you may need to get creative about how you pin down the specifics of the issue. We know that some issues do not require a full and formal investigation. However, every reported concern requires appropriate follow up.
2. Ensure all participating parties understand who is responsible for what.
Every enterprise is unique with respect to departmental and organizational structure. In some instances, Compliance may be considered responsible for issues that are not traditional compliance or ethics issues. In other organizations, particularly in an academic medical setting, ethics issues may have different investigative mechanisms dependent upon who the alleged wrongdoer is.
We have all had those hotline calls (typically occurring at 5:00 on Friday) where the reporter alleges a hostile work environment, provider misconduct, unethical billing practices, or discriminatory employment practices. Reporters may make the same or a similar report to Human Resources, Legal, Risk Management, Compliance, and Operations. Worst case scenarios: no one acts on it – or multiple departments start investigating and form different opinions about the issue.
No matter how the complaint is received, do you know who is responsible for taking it forward? To thoughtfully analyze the issues, and ensure all investigating stakeholders understand what is expected of them?
If your organization is large, consider whether a structured or ad hoc investigation intake committee might be useful. Having an intake committee in place to periodically discuss material issues that have been reported can prevent awkward scenarios which occur when lines of responsibility are blurred, and duplicative investigations are initiated.
For smaller organizations, investigators may only include whoever is responsible for compliance and ethics and whoever is responsible for Human Resources (HR). Even then, collaboration between and among the departments is imperative. If HR is recommending disciplinary action for workplace conduct issues on unrelated matters while you are also investigating a reported compliance concern, a perception of retaliation can arise. This must be managed carefully.
3. Be mindful of confidentiality and requests for anonymity.
Obviously, there are times when a reporter’s request to treat a complaint anonymously cannot be fully observed. Ensure the reporter understands what circumstances may lead to having to divulge his or her identity as early as possible to eliminate surprises.
And make sure every investigating stakeholder group or department knows the enterprise standards for conducting workplace investigations and maintaining anonymity. In some organizations, there is an expectation that the operational leader be made aware when compliance will be investigating an issue in that person’s downline. In others, that notification would not be appropriate.
I have, unfortunately, seen situations when substantive relevant information or key witness observations are improperly destroyed, altered, or influenced by offline conversations with other witnesses. In another instance, a departmental leader carried knowledge of a pending investigation to the involved parties. Lastly, make it clear to interviewees the expectation that the substance of any interview is to be treated as confidential.
4. Communicate with the reporter as much as you can.
Always thank any reporter for bringing forward a concern, even if the issue reported is not one that Compliance has responsibility to investigate. Make a commitment to follow up with the reporter, even if it is merely to advise him or her that the investigation is continuing. Few things can damage the reputation of a Compliance team more quickly than news about a report investigation circulating through “the grapevine,” and that Compliance did nothing about it. You may never be able to divulge whether the reported issue was substantiated, or if disciplinary action was taken, but use every report as an opportunity to educate and help a reporter feel confident that they were heard.
5. Engage needed subject matter experts and gather information.
If you do not have the necessary skill set within your team to adequately review a concern, engage a trusted member of another department or an independent external resource. Your ability to bootstrap expertise on a given issue quickly is part of your success as a compliance professional. But do not let your confidence get you in trouble. When it comes to assessing the need for an investigation and building an investigation plan, be confident enough to say we need help from people with deep expertise.
Data analysis is a great example of the pitfalls of trying to do it yourself. Healthcare enterprises create vast amounts of data every day. That data can be useful in the context of an investigation only if we know how to find, manipulate, and interpret it. That might not be a skill set on your team. If it is not, partner with teams that can create an ad hoc report or analytic tool to assess the complaint. If the allegation is that Dr. Joe bills only level 5 new patient visits, check the data. You can quickly and factually determine if that is a valid issue with the right report. The data will show if Dr. Joe’s billing pattern makes him an outlier from his peer group.
The prework to an investigation can be just as important as the investigation itself.
Download the Investigations Checklist to make sure you answered four key questions before kicking off an investigation.
Look for the next article in this series to learn
- Investigation planning
- Documenting and reporting of findings
- Corrective action plan development and monitoring
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Sharon Parsley, JD, MBA, CHC, CHRC, is a health law attorney, compliance officer, author, speaker, investigator, and problem solver. She currently serves as the president and managing director of Quest Advisory Group, LLC. She has nearly 20 years of healthcare compliance and legal leadership experience, and she believes that mentorship and on-the-job training are critical to compliance professional success. This is the fourth article in her monthly series on compliance officer effectiveness for the YouCompli blog.