Kusserow’s Corner: Internal Investigations—Be Prepared

The fact is that there are many people within an organization who may be called upon to respond to a complaint. It would be a mistake to refer to all these responses as investigations. What you call a response is important and carries meaning to people. For example, the word investigation is a “charged term” that invokes the notion of a law enforcement situation and a violation of laws. This can have an impact on what you do and the attitude and understanding of those that would become involved in the issue. When people hear about an investigation, their imagination may infer a lot more about what is occurring than is factually correct. It may affect the way they respond to the investigator and could make people more defensive and cautious in responding to questions. Others outside the workplace may be affected by the term. It may be useful to define an investigation. It can be characterized many ways including;

  • A search to uncover facts and seek the truth of an issue (who, what, when, where, why, and how);
  • Inquiring into something thoroughly and systematically;
  • A detailed inquiry or systematic examination to gather facts and information to solve a problem, or resolve an issue; and
  • An inquiry into unfamiliar or questionable activities.

Quickly it becomes clear that there are a number of other activities that could meet these definitions, including conducting an audit, evaluation, internal inquiry, or internal review. They all involve a detailed examination of facts. Internal inquiry does not cause the same level of emotional response, and should be used whenever possible in lieu of investigation. It is therefore advisable to use neutral terminology to avoid unnecessarily exciting concerns and speculation among employees.

Another consideration in responding to a complaint is realizing that most issues can be resolved quickly, within a day or two. Many complaints, allegations, and concerns are routine in nature and may be resolved through normal management procedures or through HRM. Those matters that may implicate a violation of law or regulation are normally directed to compliance officers or legal counsel. More complex cases may require a significant commitment of resources over a protracted period. In any case, the elements of any investigation or inquiry will include one or more interviews, gathering documents, and a case file.

I have found the most common concerns for those that are called upon to conduct an internal investigation is how this should be done properly. Most are concerned about where to begin in gaining the training to conduct investigations. These people include more than compliance officers. Keep in mind that HRM does as many if not more investigations than the compliance office. Privacy and Security Officers as well as Risk Managers have to resolve issues and incidents. For those that are interested in digging deeper into this area, I summarized the application of that experience to conducting internal investigations in a book, Conducting Internal Investigations in Health Care Organizations.

After giving definition and determining responsibility for dealing with a complaint, it is important to triage the matter, similar to what medical staff does when a patient arrives at an emergency room at the hospital. This would involve an analysis of the complaint and any allegations to determine who is best equipped to resolve the issues. It may be that multiple functions are involved.

In conducting an internal inquiry or investigation, it is important to be properly empowered in the scope of the effort. In many cases, this may involve the legal counsel, compliance officer, HRM, or members of senior management. Those who might be called upon to conduct investigations that will involve interviews should consider obtaining some basic training on the subject

Most issues from the hotline or other sources require only limited work and can be resolved within a day or two. However, occasionally an incident or issue requires something that rises to the level of a real investigation; this may create a real challenge. If the compliance office is going to step up and tackle something needing an investigation, they must be prepared. With a little forethought, many problems can be avoided should an organization be suddenly confronted with a significant problem. It is important to have some appreciation as to what this may entail. Conducting Internal Investigations is the subject of a book I wrote that has 17 chapters, 30 templates, and considerable detail on the techniques for conducting a variety of internal investigations. The following offers abbreviated highlights, as food for thought, in conducting a significant or sensitive internal investigation. It should be remembered that the following 15 points only represent the “Tip of the Iceberg”:

  1. Take no action without first thoroughly assessing the problem. Often this phase is referred to as “triaging” the matter. It involves determining the level of credence given to the allegations or complaint, as well as what laws, regulations, policies, or code provisions may be implicated. It also involves determining what resources and people will be needed to resolve them.
  2. Ensure properly qualified person(s) is selected to conduct the investigation. Someone inexperienced or lacking the proper training or demeanor can prove problematic, as well as someone who cannot prepare a proper written report at the end of the investigation.
  3. Work out respective roles with legal counsel. In most investigations, it is not necessary to involve legal counsel, except in a consultative role. However, in some cases, the investigation should be conducted under direction of legal counsel. The respective roles must be clarified BEFORE there is an investigation inasmuch as it can avoid confusion and contentions.
  4. Determine the scope of what needs to be done and develop an investigative plan that includes determining what information is known, who else may have additional information, and what documents are needed. At this point relevant documents should be assembled along with a list of those that need to be interviewed.
  5. For most investigations, the active investigation begins with document assembly and analysis, followed by interviews. There are three significantly different types of interviews: the complainant, witnesses, and subjects of the investigation.
  6. By definition, there are severe limitations on authority in conducting an internal investigation as the investigators will lack any law enforcement power or other legal authority of the state.
  7. Respect the rights of employees that are protected by law and policies. In those organizations that are unionized, the role of the union and the limitations of the agreement with it will set additional limits on the authority of the investigator. If the person being interviewed is the subject or accused of a wrongful act or misconduct and is a member of a union, they have the right to the presence of a union representative.
  8. Remain objective in conducting the investigation, not allowing personal feelings to interfere with gathering fact and evidence, as this could not only reduce the effectiveness of the investigation, but prejudice the results.
  9. Understand that witnesses are unreliable in remembering details and can be colored in their perceptions by personal prejudice or outlook. As such, anything witnesses provide needs to be verified, or it will undercut their observations and statements.
  10. In some cases, the Compliance Officer may be investigating the conduct of a high level and influential person who may be in a position to cause considerable pressure.
  11. Sometimes the matter under investigation is time-sensitive and considerable pressure is put on the Compliance Officer to quickly complete the investigation.
  12. Avoid taking shortcuts that might undermine the accuracy or completeness of the investigation.
  13. Carefully document all evidence acquired and interviews conducted.
  14. Keep access to the investigative case file under lock and key with limited access to authorized persons only.
  15. Take care in communicating on the progress of the investigation, often made difficult by interest that may exist with senior management or Board. This may be a touchy subject in that providing such information (uttering and publishing raw and unsubstantiated allegations) could create a host of problems for the investigation and to those who receive such information.

In some cases, there may be a real need for a professional investigation by professional investigators who have in depth training and experience. Turning to attorneys for this may not be the right answer as few of them are professionally trained investigators. For health care cases, some of the best qualified people may be former Special Agents from the HHS OIG or the FBI (if they worked in the health care space).

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

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Copyright © 2014 Strategic Management Services, LLC. Published with permission.