Confidentiality Counts

When investigating and fixing problems, many staffers are reluctant to come forward unless they are promised confidentiality. This is not an easy promise to make.

Serious and costly mistakes can occur when addressing confidentiality in a reporting system. For example, more than one health care company that handled the issue of reporting confidentiality indecisively has found itself looking at the wrong end of a wrongful discharge lawsuit when a hot-line caller who disclosed his identity was later discharged in a routine cutback. The allegation was that the employee’s disclosure put him on the “discharge list” for the subsequent cutback.

Still, home care companies can take steps to reduce the ability of a caller who reports a problem — and who is later (coincidentally) discharged — to claim that the discharge was retaliatory.

First, keep clear records of those few people to whom the caller’s identity is disclosed to demonstrate that the disclosure was necessary and limited, and that those people were not in a position to retaliate or had no motive to do so. Second, have a clear written policy limiting who is permitted to learn the identity of callers and what circumstances justify that disclosure.

Third, routinely advise callers to retain their confidential status by not disclosing their communication to other parties. Then, a caller who violates policy and discloses the fact of his phone call to friends or colleagues will need more proof than the mere fact of the discharge to show a causal relation between the reporting call and the discharge.

Some recommend that hotline representatives caution callers not to disclose their identity except when the hotline agent sees a specific reason for it. They conclude that this enables the representative to retain control of the call and minimize the ability of the caller to claim retaliation for any coincidental future discipline or discharge.

But there are two sides to this debate. Others suggest that anonymity is rarely wise or even possible. There are times when the caller needs to be contacted for further information. Moreover, an investigation following a phone call will frequently lead to clues to the caller’s identity.

If a home care company has an “anonymity policy,” this subsequent discovery of the caller’s identity may be perceived as a violation of that anonymity. Plus, they suggest, a policy that requires a hotline caller to disclose his identity (except in special circumstances) will reduce the number of inappropriately motivated calls.

Another idea is to encourage callers to contact the company or its hotline a second time if they have any reason to fear they have become the subject of retribution or reprisal. If the home care company has a policy that routinely investigates such allegations, and it reasonably concludes in writing that there is no credible evidence to suggest such a motive, this should go a long way toward rebutting any implication that the discharge or discipline was punitive. As always, the viability of this approach depends on the company’s willingness to conduct a fair investigation of every allegation of retribution, and its willingness to discipline anyone found to have engaged in inappropriate activity.

Tracking issues are related to anonymity issues. An effective reporting program should have a system for tracking compliance calls that permits easy access to information when appropriate, but protects the information from unauthorized scrutiny.

Some health care companies use a case numbering system to support tracking and follow-up. Each inquiry is assigned a case number, and the investigation thereafter references the case number rather than any caller’s name. This idea is useful for many reporting systems, even those without hotlines.

As part of this system, the home care company or the hotline office should prepare a periodic summary report based on activity from the prior period. How often the company needs to prepare this report depends upon its size and the frequency and security of reported problems.

It is not always easy to balance an employee’s need for protection and the company’s need to investigate effectively, but finding this balance is important. Strive for it, please.

Neil Caesar is president of the Health Law Center (Neil B. Caesar Law Associates, PA), a national health law practice in Greenville, S.C. He also is a principal with Caesar Cohen Ltd., which offers compliance training, outsourcing and consulting and the author of the Home Care Compliance Answer Book. He can be reached by e-mail at [email protected] or by telephone at 864/676-9075.

The ROPE Ladder

Rung 1: Articulate the way you want things to run, and note how they run now. Then, tweak your systems as necessary to comply with “The Rules.”

Rung 2: Teach your operating systems to your employees.

Rung 3: Implement a clear and simple method for dealing with problems — identify them, report them, investigate them and fix them.

Rung 4: Give your compliance staff resources to help them keep up-to-date with internal and external changes that may sometimes require you to refine your operating systems.

Rung 5: Monitor your operating systems to make sure they continue to run as you intended.