Kusserow on Compliance: Investigation Guidelines and Tips

Although most Compliance Officers have a responsibility to conduct investigations as result of “hotline reports” or for other reasons, the fact is that conducting a full investigation of potential violations of law, regulation, or policies is infrequent. In many cases, this leads to avoidable mistakes that in many cases compromise the investigation and in some instances aggravated circumstances. There is hardly a week that goes by that problems arising from these mistakes are brought to my attention to find remediation to the resulting problems. This happens so frequently, I decided to provide some reminder tips to those called upon to conduct investigations. It may be worthwhile printing this off and having it somewhere for future reference.

Tips on Managing an Investigation

  • Fully Debrief Complaints Promptly. Many serious issues are mishandled all the time by allowing too much time between the filing of a complaint and debriefing the complainant. Memories fade or get distorting, or get influenced by subsequent events. Any identified complainants should to be fully debriefed quickly, as to the basis of their allegations, concerns, and complaints; and any supporting evidence to the allegations should be gathered promptly.
  • Need to Know. The general rule for all investigations or inquiries should be under the “need to know” standard. This means that all discussions regarding the investigation should be restricted on “need to know” basis. There should be no sharing of information regarding the predication, direction, or findings of the process with any unauthorized parties. In any inquiry or investigation, the facts will dictate how to address the issue.
  • Independence and Objective. The process of conducting the investigation must be viewed as an independent inquiry free of outside influence. There must be a fair and impartial review of all relevant facts.
  • Include Managements Perspective. Often complaints and allegations are made about management decisions and actions. It is important to include management’s views as part of the report and not rely solely upon representations of staff.
  • Exercise Discretion. It is very important for the investigator to be discreet in gathering pertinent facts and evidence. In a confined work environment, the workplace “telegraph” can sometime move faster than the investigation in a way that can easily undermine the effort in effecting the interviews of individuals. So exercise discretion when selecting sites for and conducting interviews to avoid overhearing or conjecture as to what is happening.
  • Avoid Using Original Documents. All original documents that are evidentiary to the case should be tagged, logged, and placed in a secure file. All interviews where such documents are relevant to the process should be with copies, not original documents.
  • Controlling and Tracking Cases. All predicating “cases” from complainants or otherwise should be date-stamped, logged, and numbered as part of Compliance Office records management.
  • Chain of Custody. All evidence obtained during an investigation must be tracked, so that it is never outside of the control of the investigators. This is referred to as maintaining “chain of custody” and failure to do this may result in the evidence being questioned or disallowed in a formal adjudicative process.
  • Stay Focused. Investigators must never lose sight of the purpose and objective of the investigation. This means staying focused on factors relating to the complaint and not be distracted by extraneous information.
  • Be Flexible. It is critical to stay focused, but not to the point of being inflexible. Many times, the investigation will have to adapt to changing fact patterns or conditions. This is not meant to conflict with the previous point, but to recognize that under certain circumstances that deviating from the guidelines and investigative plan may be necessary. Remaining too narrowly focused may result in missing even more significant issues than those that predicated the original investigation. In many cases the investigation may identify related problems to the original complaint or allegation.
  • Be Comprehensive. For most investigations, there is one chance. As such, it is important that everything be done right the first time. It must be comprehensive enough to answer all the questions raised in the predication, as well as sufficient to identify any pervasive or systematic problem that may have caused the problem.
  • Prevent Retaliation. One of the worst outcomes of an investigation is to have retaliation or retribution against the original complainant or witnesses. This issue is specifically addressed in the OIG Compliance Guidance. It is also something that can create serious legal liability.
  • Document Control. All records of investigation should be kept under lock and key control in a limited access area. Having information about an active or past investigation go astray can create a huge problem and potential liability. All too often, documents are left accessible or in plain view. Losing control over evidence, documents, or notes of interviews can be a serious issue.

More tips and guidance on conducting internal investigations can be found in “Conducting Internal Investigations in Health Care Organizations.” For those organizations where investigations are frequently required, consideration should be given to having a training program on the proper methods of conducting an investigation. It is advisable to have all those who may be called upon to conduct an investigation to be included in the program. These may not be limited to the Compliance Office. Many others may get involved in such activities from HRM, Security, Internal Audit, Legal Counsel, etc.

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.