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.

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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.

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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.

Kusserow’s Corner: Tips on Interviewing Witnesses

At all times, interviewers must remember they are the ones asking questions and seeking information.  They are not the dispensers of information.  Because the purpose of the interview is part of an investigation, interviewers should not reveal the status of the work, offer opinions, or indicate what has been found so far or said by others.  Always remember that the purpose of any interview is to establish facts.  A lot of opinions and conjecture may be offered by people, but only the facts are really needed.  It is common for those being interviewed to want to drift off of facts, especially if they are uncomfortable with the direction of the interview.

Conduct During Interview

The demeanor of the interviewer is important to the outcome of interview. If the interviewer appears quietly competent and professional, it will encourage confidence in the individual being interviewed. It also reduces nervousness in innocent parties and increases nervousness in guilty ones.  The interviewer’s manner should always be polite but firm.  Cooperation is essential; intimidation is counter-productive and possibly disastrous in outcome. Under no circumstances should the interviewer show disrespect for the person being interviewed.

Stay Focused, But Adaptable

Avoid drifting away from the purpose of the interview.  However, at all times maintain an open mind to all information, and be prepared to develop it.  Always follow through on questions asked and do not be diverted by other comments.  Ensure that basic questions such as who, what, where, when, how, and why have been addressed.  It is advisable to avoid using terms that might evoke negative connotations.

Remain Professional

It is critical to always project a professional image.  This begins with dress.  An interview is a formal business meeting and the interviewer should dress as such in a conservative suit; men should wear a tie.  Dressing down in jeans and a sports shirt does not project a professional image and doesn’t buy you much in building rapport and understanding.  The people to be interviewed are not your friends (or shouldn’t be) and therefore you should not dress and act as if they were.

Avoid Disclosing Statements of Others

Interviewers should not volunteer the name of the complainant or another witness, unless it becomes necessary.  The general rule should be to not discuss statements made by others unless absolutely necessary, as it may affect the statements of the interviewee.  Even worse, the interviewee may simply agree to the same points as if it was independent testimony of his or her own.

Interviewers, the following are some tips in initiating interviews:

  • Identify yourself and any others participating in the interview.
  • Explain the purpose of the investigation.
  • Inform them why they are being interviewed.
  • Tell them it is their duty to provide complete and accurate facts.
  • Tell them your authority to conduct the inquiry.
  • Explain you are seeking cooperation and the interview is voluntary.
  • Establish rapport with the person to be interviewed.
  • Treat those interviewed with dignity, respect, and courtesy.
  • Make no threats.
  • Remind subjects they should be candid and not fear retaliation.
  • Ask if they have any questions before the interview begins.
  • Keep control of the interview by asking, not answering questions.
  • Avoid use of any investigative jargon.
  • Note that subjects’ comments will be kept confidential to the degree possible.
  • Request that subjects also keep the interview confidential (“street runs both ways”).
  • Offer no opinions relating to the investigation.
  • Don’t ask subjects’ opinion or conclusion on the case.
  • Take notes throughout the interview.
  • Keep the questions simple and direct, avoiding compound sentences.
  • Restate important questions in different ways to ensure correct answers.
  • Ask subjects if they know of others that might be able to add useful information.
  • At the interview’s conclusion, tell subjects they may be re-interviewed to clarify points.
  • Ask subjects to contact you if they can think of anything not covered.

Richard Kusserow served as the DHHS Inspector General for 11 years, with prior services in the FBI.  He is the author of Conducting Internal Investigations in Health Care Organizations, AIS, 2011, (ISBN 979-1-936230-60-8).  He is currently CEO of Strategic Management Services.

Connect with Richard Kusserow on Google+ or LinkedIn.

Copyright © 2013 Strategic Management Services, LLC.  Published with permission.