Forget the Duct Tape

Suppose one of your employees reports trouble with your billing department or your sales force or your therapists. Perhaps an anonymous tip came to your hotline or maybe an employee discussed his concern with a supervisor who passed it on to you. Your reporting system works! Congratulations.

Now it is time to investigate.

Investigation is not a one-size-fits-all proposition. Sometimes the compliance officer will handle the matter alone, asking questions and seeking documents. Other times, it makes sense for the compliance officer to enlist assistance from others. A supervisor may question personnel or a billing expert may analyze claims. Regardless, it is best for the compliance officer to do the necessary legwork and open all doors to the receipt of such information. In an effective compliance program, everyone in the organization — everyone — must cooperate with the compliance officer.

Do you need to call in an outside expert? It depends. If the problem is isolated, so that knowledgeable people in your organization can help assess its nature and scope, then handle it internally. But if there is reason to suspect that the problem is endemic, pervading all elements within the company or a particular department, then it makes no sense to use inside people to investigate. In this case, an outsider will provide the necessary objectivity and plausibility for any findings, adverse or positive.

Do you need to bring in a lawyer? That, too, depends on the situation. If the investigation is likely to lead to legal concerns, or if legal concerns turn up after the investigation begins, counsel is essential. At this point, stop the investigation, contact competent counsel, explain what has happened and ask whether counsel needs to take over. If you are using the right person, he or she will give you an honest answer. The compliance officer will still have a key role after that point, but the investigation will be under the direction and authority of counsel, with appropriate paperwork documenting the change in the relationship.

This is important for two reasons. First, if there is a concern about problems that suggest fraud, abuse or other legal violations, then counsel will be essential to assess the evidence and its implications.

Second, turning the investigation over to your lawyer can bring it within the embrace of attorney-client privilege. You will still have to deal with what is discovered. Evidence cannot be hidden and disclosure cannot be avoided. But attorney-client privilege can protect your discussions about what to do about the information and your conclusion about the approach to take.

After the investigation, you may conclude that no problem exists or that mistakes were made reflecting error, ignorance, misinterpretation of the rules, violations of law or whatever. What next?

The next step is to assess whether the compliance problem indicates that there were also past problems that precede the time frame of your investigation. In other words, is this a problem that may result in a need to pay money back to the government, so that you need to explore further in the past? Or is it a problem that only needs to be fixed proactively?

This is an important decision. Sometimes it is clear that the problem ties to a new employee or recent policy. It is easy to identify when the problem started, to fix the problem and to assess whether any accommodations need to be made to the government or to third-party payers. However, if your investigation determines that a criminal or civil offense has occurred, you will be vulnerable if you do not assess promptly what you need to do to address the problem, including how far back to investigate.

Be particularly careful with recurring problems. They may imply (and the government will certainly suspect) that you did not take reasonable steps to prevent the past misconduct. It is hard to argue that you have an effective compliance program if the same mistakes recur.

Forget the bubble gum and duct tape. Get out the soldering iron and fix the problem effectively. Then monitor the situation carefully for the next couple of years.

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.