Kusserow on Compliance: Exit interviews as a compliance communication channel

Tom Herrmann, JD, had served in a senior capacity with the Office of Counsel to the Inspector General (OIG) at HHS. He pointed out that the OIG, in its compliance guidance, calls for the development of effective lines of communication with employees as very important to the successful implementation of a compliance program and the reduction of any potential for fraud, abuse and waste. This include implementation and use of hotlines (including anonymous hotlines), e-mails, written memoranda, newsletters, and other forms of information exchange to maintain these open lines of communication. One significant channel of communication is the use of exit interviews to debrief departing employees prior to their departure. A major factor influencing the advancement of exit interviews in connection with compliance programs has been the rise in the number of “whistleblowers.” Most of these come from people reporting on an organization they had recently left.  As such, there is great value in debriefing those departing the job that includes asking question about any observed violations of law, regulation, Code of Conduct, or policies. Optimally, an exit interview process should be done in time to permit possible remedial actions before they leave employment.  He has found that exit interviews can also be useful in avoiding other costly litigation involving unlawful harassment, discrimination, safety violations, etc.  It is very important to keep a record of the interviews conducted and responses.

Carrie Kusserow has been developing, enhancing and monitoring exit interview programs for over 15 years. She noted that 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. However, exit interviews may also be used to alert an organization to company compliance issues, potential whistle-blowers, or quality of care issues. At a minimum, an exit interview should include compliance program oriented questions that relate to compliance education, policies, anonymous reporting procedures, and attitudes towards the compliance program. The following are examples:

  1. How effective was your training on the compliance program, Code of Conduct and policies?
  2. Were you trained on how to report concern and problems confidentially or anonymously?
  3. Did you believe that those reporting compliance issues would be protected from retaliation?
  4. Are you aware of any ethical or compliance issues; and if so did you report them?
  5. How could the company strengthen its message regarding ethics and compliance?
  6. Is everyone in the work force treated fairly?
  7. Do you believe management fully supports the compliance program?
  8. Are you leaving due to any compliance concerns about your job or work environment?
  9. Are you aware of any improper or illegal conduct in the workplace? If so, who and what?
  10. Have you reported compliance issues or concerns that are unaddressed? If so, explain.

 

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 © 2018 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: Employee screening against the Specially Designated Nationals and Blocked Persons list

A frequently asked question by compliance officers for health care organizations is whether they should be screening employees and others with whom they do business against the Office of Foreign Assets Control (OFAC) Specially Designated Nationals and Blocked Persons list (SDN). OFAC is part of the U.S. Department of Treasury that determines whether or not an entity or individual is permitted to do business with the United States. The SDN is “….a list of individuals and companies owned or controlled by, or acting for or on behalf of, targeted countries. It also lists individuals, groups, and entities, such as terrorists and narcotics traffickers designated under programs that are not country-specific.”

Tom Herrmann, JD—who served over 20 years in the HHS Office of Inspector General (OIG) Office of Counsel to the IG and subsequently 6 years as an Appellate Judge for the Medicare Appeals Board—was asked to comment on this issue. He noted that the SDN list was primarily designed for use by financial institutions; they are not permitted to deal with anyone on the list. As a result, OFAC alerts can sometimes show up on credit reports. It is safe to assume that employers, also, would prefer not to hire someone on the SDN list. Those industries most involved in OFAC screening are international businesses, particularly in banking, finance, and insurance. He made special note of the fact that screening against the OFAC SDN List is not required for healthcare providers or managed care and may create more problems than benefits from doing it.

Ashley Felder is a Human Resources Consultant who warns that from an employer’s perspective, a significant problem is that the list consists of a very large number of common Arabic names that can be transliterated into English many different ways that create many false hits. This opens up the possibility of discriminatory practices unless a great deal of care is used in applying the information. In view of the fact that there is not specifically identifiable data that can confirm a match, means that a potential hit cannot be fully resolved without confronting the individual for a detailed briefing of their background. This can be very troublesome and may lead to charges of discrimination, profiling, defamation of character, etc. The result is that OFAC may or may not be a useful supplement to a standard criminal check or screening against state credentialing agencies, the OIG List of Excluded Individuals, and Medicaid sanction lists.

Jillian Bower, Vice President of the Compliance Resource Center that provides sanction-screening tools and services, noted that the overwhelming majority of healthcare related entities “do not” screen against the OFAC SDN. She explained that there are some issues and potential complications in using it for employment screening, as result of the fact that for the most part, the list is name-only with multiple aliases per person, and is a mix of individuals and organizations. Dates of birth are usually missing, or multiple possibilities are listed. Address history, if present, only includes city and country. So OFAC checks are name-only, and making a positive identification can be difficult, if not impossible. As such, the Compliance Resource Center (CRC) does not recommend screening OFAC, unless there are special concerns or reasons for doing so, such as operating outside the United States in areas designated by the Department of Treasury for special concern.

 

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.

 

 

 

Kusserow’s Corner: Tips on Debriefing Individuals Who Register Complaints

It is not often that a health care organization has a need for a full investigation, so when something serious does arise, it often catches off guard the Compliance Officer and others charged with resolving complaints.  It is worthwhile to have someone trained or at least familiar with conducting an investigation on staff, or have someone available that can be called upon to assist. Keep in mind when seeking expert assistance that just because someone is an attorney, it does not mean they are expert investigators.  The key to success of most investigations lies with following the right steps from the inception of a complaint through final report and disposition of a matter.  The following provide tips in debriefing complainants are drawn in large measure from a book I wrote on “Conducting Internal Investigation in Health Care Organizations.”

There are many reasons why someone will take the time and risk of filing a complaint or set of allegations.  It is important to understand their motivation, in order to properly evaluate the allegations and determine the appropriate response.  What this means is finding out why they are making the complaint and the level of personal concern for the issue raised in the allegation(s).  It is important to note that not all motivation is altruistic.  Sometimes a complainant is trying to strike back at someone, such as their supervisor or to deflect attention from their own conduct.  If possible, try to do a little homework on the complainant to learn if there are facts on record that may give some insight to the person.  Of course, full debriefing assumes the person has presented themselves in making their complaint or allegations.  In many cases, the complainant may have reported directly to the hotline anonymously.  In that case, the Compliance Officer will have to rely upon how well the operator debriefed the person and the details in the report.

Questions for Determining Motivation

  1. Has there been any prior history between complainant and subject?
  2. Is the complainant a friend or hostile to the subject?
  3. Is complainant personally affected by the conduct reported?
  4. Are friends of the complainant being affected by the alleged conduct?
  5. Why is the complainant raising concerns at this time?

Once the interview begins, it is important to hear out what the person wants to report in their own words, with as little interruption as possible.  Once this has been done, then it is time for specific clarifying questions to guide the person back through the information.  These questions should include the standard WHO, WHAT, WHERE, WHEN, and WHY.  These questions should be designed to expand on the factual details and to test and corroborate the information.  During the debriefing process, it is important to establish relevant time frames and chronology of events. It is important to look for avenues that will provide a means to either substantiate the allegations or dismiss them.  Inasmuch as the allegations may relate to a specific event, something personal or organization wide, an ongoing process problem, etc.  It is impossible to draft a set of question that would apply in every circumstance, however the following gives an idea about the types of questions that can be asked in a formal debriefing.

20 Debriefing Questions for Complainants

  1. What happened that led you to make the complaint?
  2.  Why are you coming forth now?
  3.  What occurred, where, when, and how?
  4. Has anyone else told you about similar conduct?
  5.  When did it occur (date and time)?
  6.  Where did it take place?
  7.  How did you respond when it occurred?
  8.  Who did you discuss this with and when?
  9.  What did you say?  What did they say?
  10.  How has this incident affected you?
  11.  Has your job been affected in any way?
  12.  Who else was present when the act occurred?
  13. Who else has any knowledge of the act?
  14.  Has anyone else discussed it with you?
  15.  If so, who and what did that person say?
  16. Who else was involved, knows about, or witnessed it?
  17.  Who else have you told (employees, supervisor, attorney, media, etc.)?
  18.  Why do you think it happened?
  19. What do you believe should be done to resolve this matter?
  20.  Has is happened before (an isolated event or part of a pattern)?

Once information is received, time is not a friend and immediate action is warranted.  Those who register complaints, by whatever means, may decide to make another call to an attorney, government agency, media, etc.  Furthermore, the key to resolving any issues that are raised in a complaint will be interviewing people, whose memory clouds and fades fairly quickly.  You need to speak with possible witnesses before that happen. Sometimes a single complaint may encompass several different allegations.  This is very common however, regardless of how many different allegations that may be included in a single complaint, treat each allegations independently. As with other sources of information that could predicate an investigation, it is critical that the information be acted upon immediately. Any delays could prove to result in serious problems and possible liability.

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’s Corner Newsletter

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