Kusserow on Compliance: Human resources management compliance jurisdiction

The great majority of internal investigations arise from complaints filed with the human resources management office (HRM) or through the compliance office hotline. Both functions have their own jurisdiction for dealing with sensitive issues, and this can raise tension and conflict if not addressed properly. HRM has a mission to assist employees in a host of ways, ranging from salaries and benefits to working conditions. It is therefore not surprising that the department is a front-line recipient of questions, concerns, complaints, and allegations related to the workplace. For all practical purposes, the primary responsibility for investigating and resolving personnel-related issues, including unfair labor practices, discrimination and harassment, lies with HRM.

Specific rules must be followed when conducting such investigations and the federal agency providing guidance and oversight is not the HHS Office of Inspector General (OIG) or the Department of Justice (DOJ), but the Equal Employment Opportunity Commission (EEOC). Furthermore, in some states, individuals conducting these types of investigations must undergo a designated number of hours of specialized training on the laws and rules governing employees in the workplace.

The sources of workplace complaints are varied, but their emergence is all but inevitable. With that in mind, it is important to have a clearly communicated and consistently applied policy detailing the specific procedure for reporting complaints. Many organizations encourage employees to utilize the “traditional” chain of command approach to reporting and resolution, while others have established more progressive open door communication policies to encourage unrestricted communication. Direct reporting to HRM is also an option for employees.  Allowing employees to report issues via an employee hotline, generally managed by the compliance officer, is yet another mechanism of reporting.  With most hotline calls have issues that fall under HRM primary jurisdiction, it requires careful coordination to guard against a matter falling between the cracks. This does not necessarily create a bright line of authority between the two functions, as many concerns raised may cross the line from being personnel issues to being compliance issues. It is essential that the compliance office and HRM maintain open communications and establish reciprocal reporting obligations for the purpose of ensuring the appropriate department is apprised of issues that are its primary concern. They must be able to coordinate investigative and resolution activity to avoid unnecessary duplication of efforts.

All of these reporting approaches provide a stream of information that can result in the need for internal inquiry or investigation. It is very important to note that, in order to have an effective reporting program that employees will actually utilize, it must be coupled with a clearly stated anti-retaliation policy. Employees must know that retaliation or attempted retaliation in response to lodging a complaint or invoking the complaint process is strictly prohibited by the organization. In August of 2016, the EEOC issued “Enforcement Guidance on Retaliation and Related Issues”, the EEOC’s first comprehensive review of retaliation since 1998. This was in direct response to the fact that retaliation is now the most frequently alleged basis of discrimination that EEOC receives.

The compliance officer focuses much attention on the Anti-Kickback Statute, Stark Laws, False Claims Act, and other fraud laws with considerable attention given to the OIG, DOJ, and state Medicaid Fraud Control Units. By contrast, the laws that most often occupy HRM interest include Title VII of the Civil Rights Act 1964; the Age Discrimination in Employment Act; the Americans with Disabilities Act; the Family and Medical Leave Act; the Fair Labor Standards Act; the Uniform Services Employment/Reemployment Rights Act; the Employee Retirement Security Act’s governing compensation and benefit plans; and the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) for employer-sponsored health benefits, among others.  The government agencies that oversee these areas are the U.S. Department of Labor, the Equal Employment Opportunity Commission (EEOC), and a variety of state agencies.  Violations can result in serious penalties.

Regarding matters that HRM must investigate and resolve, one area long overshadows (numerically) compliance matters raised to the compliance officer to handle: discrimination and unlawful harassment. Complaints to the federal EEOC and state counterparts number over 100,000 annually.  Many other complaints are received by HRM that never go so far as to be reported to outside authorities.   To meet the challenge of avoiding such complaints, HRM must implement a variety of compliance policies and train everyone on them.  These activities are familiar to compliance officers, who must do the same within their risk areas. However, in the case of some of the HRM-related laws and regulations, federal and state governments establish special rules for standards for related policies and mandatory training.  Special rules extend to the manner by which these types of cases are to be investigated and by whom, when there is a formal complaint.

One example of a compliance risk area requiring care relates to unlawful (sexual) harassment. In a series of Supreme Court cases, the High Court set forth the principle that no employer can mount an affirmative defense to allegations of unlawful harassment unless they can meet three standards: (1) they have zero tolerance policies and procedures in place; (2) all employees and managers are trained on these policies; and (3) the organization has taken steps to identify emerging issues and do not just wait until a complaint takes place.  On this last point, examples of action steps by management include screening hotline calls for any indications of emerging issues, conducting exit interviews and asking about employee work environment issues, and using training on the subject as a means to open discussion of potential problems.  In the latter case, having people stay behind to make further inquiries is more likely to open doors that public statement during formal training.

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 © 2017 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: 4 out of 5 organizations under 1,000 employees overpay for their hotline

It is estimated that over 80 percent of health care organizations with fewer than 1,000 employees overpay their hotline vendor. The reasons for this vary.  For large scale vendors, higher overhead may cause difficulty scaling down their prices; smaller vendors may just be trying to wring out every dollar they can. Another problem among vendors is that some provide both answer-operated and web-based reporting systems, while others do not.   This variance in level of service is a complicating factor.  At any rate, only vendors that provide full-range coverage that offers live-operator answering, 24 hours a day, seven days a week, along with web-based reporting, should be used. For both services, anonymous reporting must be an option.

Fair pricing rates. Today, all health care organizations are cost-sensitive and seek reductions anywhere they can, without loss of quality of service. The general rule of thumb for the price of hotline vendor services for organizations under 1,000 employees that provide both operator-answered and web-based reporting system is that the rates for services should range from around a low of $500 per year to $1,000, depending on employee population. Keep in mind set-up costs for a new service, as well as the continuing service fees. For organization with greater employee populations, the service rate should not exceed $1 per employee per year. Those paying higher rates may want to investigate alternative providers to save expenses.

Recent trends in hotline reporting. Carrie Kusserow, a hotline expert with experience gained from running hotline vendor services and managing hotlines as a compliance officer, reports a significant increase in reporting rates on hotlines. She attributes this to a variety of factors. There has been increased promotion of reporting suspected violations by government agencies and compliance officers, coupled with whistleblower protection laws and regulations. Most organizations now have developed compliance programs that mirror the compliance guidance provided by the HHS Office of Inspector General (OIG).  Over time, this has taken hold and become standard operating practice.  This guidance emphasizes the need for organizational commitment to ensuring confidentiality and to those reporting problems, in addition to offering anonymity for those desiring it.  Kusserow quoted Compliance Resource Center reports of a significant trend in the health care sector of an increase in the percentage of anonymous hotline reports, with about three out of four now being submitted that way. In addition, Kusserow explained that compliance officers have become more professional in responding to and investigating complaints and allegations they receive.  This, in turn, has encouraged employees that their reporting will be taken seriously.  Furthermore, compliance training has reinforced the employee’s duty to report problems.

Jillian Bower, of the Compliance Resource Center, has identified another factor contributing to the increase in reporting: the addition of new avenues of communication. As a new generation of technically savvy employees entered the workforce, more employees feel more comfortable using web-based reporting tools; that is becoming the preferred method in increasing numbers.  She notes there has been an increasing percentage of employees who prefer submitting their hotline report through web-based systems, when given that option.   Today, the percentages reported through a live operator and via the web have reach near parity.  As such, it is important the vendor offer the web-based option, and those that do not should not be used.  The end result of all these changes is that the OIG’s advocacy of organizations developing alternative compliance communication channels is a reality.

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.

Connect with Richard Kusserow on Google+ or LinkedIn.

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Copyright © 2017 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: OIG hotline being used by scammers

The HHS Office of Inspector General (OIG) accepts hotline complaints by mail, telephone, fax, or online. However, the office emphasizes that it does not use its phone number for outgoing calls. The OIG has issued a Fraud Alert reporting that its Hotline telephone number is being used as part of a telephone “spoofing” scam targeting individuals throughout the country.  The office reported engaging in a criminal investigation of this activity and intends to present cases against perpetrators to the U.S. Department of Justice (DOJ) for prosecution.   It explained that scammers have been altering the appearance of the caller ID to make it seem as if the call is coming from the HHS OIG Hotline, 1-800-HHS-TIPS (1-800-447-8477). Scammers call individuals and represent themselves as HHS OIG Hotline employees and use a variety of tactics to obtain personal information, which can then be used to steal money from an individual’s bank account or for other fraudulent activity.

The OIG warns the public to be on guard and not to provide personal information to callers. Those who believe they may have been a victim of this spoofing scam should report that information to the HHS OIG Hotline or spoof@oig.hhs.gov. Complaints may also be submitted to the Federal Trade Commission (FTC) via 1-877-FTC-HELP (1-877-382-4357).  The OIG also made clear that it is still safe to call into the HHS OIG Hotline to report fraud; information it receives is evaluated by the Office of Investigations, which has 420 Special Agents throughout the country who are specially trained to conduct these investigations.

OIG tips to protect yourself

Do not verify your name or any other personal information to anyone unknown to you. no personal information should be given to unknown individuals, including any of the following information:

  • Social Security number;
  • date of birth;
  • credit card information;
  • driver’s license number;
  • bank account information; or
  • mother’s maiden name.

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.

Connect with Richard Kusserow on Google+ or LinkedIn.

Subscribe to the Kusserow on Compliance Newsletter

Copyright © 2017 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: Exit interviews, another important compliance communication channel

In the HHS Office of Inspector General’s (OIG’s) compliance guidance, the agency calls for the development of effective lines of communication with employees. The OIG notes that an open line of communication between the compliance officer and personnel is very important to the successful implementation of a compliance program and the reduction of any potential for fraud, abuse, and waste. High on the list of channels that organizations are encouraged to implement is the use of hotlines (including anonymous hotlines). However, the agency stresses the importance of other channels such as e-mails, written memoranda, newsletters, and other forms of information exchange to maintain these open lines of communication as well. The major purpose of these lines of communications is to learn about business practices and conditions in the workplace, particularly those that might result in wrongful acts. Yet, one very significant channel of communication not cited in any of the OIG’s compliance guidance documents is the use of exit interviews to debrief departing employees prior to their departure.

Many organizations conduct employee exit interviews (also called exit surveys) to gather data for improving working conditions and retaining employees. This has been common in human resource management for generations and this type of communication can be useful in taking actions to correct deficiencies, reduce turnover, identify potential compliance-related problems, and maintain a productive work environment.

Now, changes in the regulatory landscape have underscored other reasons for exit interview programs. Among the more significant factors bearing on this point have been the recent Supreme Court decisions regarding unlawful harassment that stated organizations will not be permitted to raise an affirmative defense unless they have taken certain affirmative steps to seek out potential development of a hostile work environment. Hotlines, as well as exit interviews, can be used to provide an employee with the means and opportunity to register a report on hostile work environment issues, such as sexual harassment, retaliation, abusive practices, discrimination, etc.

A second major factor influencing the advancement of exit interviews has been the rise in the number of whistleblowers. These individuals have been encouraged by a variety of means, not the least of which has been the qui tam provision of the False Claims Act (FCA). At this time an average of one allegation a day relating to health care providers is being registered with the Department of Justice (DOJ). Therefore, it is doubly important to debrief those leaving and include in that process questioning about any fraudulent or wrongful activity they observed or suspected so that early intervention can address that risk.

The objectives and processes of an exit interview program can be expanded to include assisting employers to avoid costly litigation down the road, caused by disgruntled employees. Optimally an exit interview process should be done in time to permit possible remedial actions before the employee ends their employment.

Potential compliance benefits

  • Providing early warnings to management that something might be wrong in some operational area;
  • Deterring departing employees from becoming “whistle-blowers” after they secure new employment and are free from the fear of retaliation;
  • Providing useful operational information for management to take quick corrective actions;
  • Permitting the individual a legitimate path for redress of grievance; and
  • In many cases, assisting an organization in using their departing employee interview program as an affirmative defense to litigation.

Although this can be a very important element of any compliance program, the fact remains that the primary force for such a program will likely remain with human resource management. Further, because these departments are normally overloaded with other requirements related to departing employees, this staff often is unable or unwilling to expand this program to encompass the compliance related concerns. Some organizations encourage departing employees to call the hotline to relate their experiences with the organization.

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.

Connect with Richard Kusserow on Google+ or LinkedIn.

Subscribe to the Kusserow on Compliance Newsletter

Copyright © 2016 Strategic Management Services, LLC. Published with permission.