Compliance programs should keep a sharp eye on all communications

Every word written or spoken in connection with a health care practice presents the potential for risk. At a Wolters Kluwer webinar entitled, Health Care Communication Risks—From a Compliance Perspective, two presenters pointed out various areas of concern and ways for compliance professionals to approach them. Robert Liles, managing partner at Liles Parker PLLC, and Paul Weidenfeld, chief legal officer of Exclusion Screening LLC, spoke from years of experience on topics such as criminal issues, administrative concerns, employment, and documentation.

Text messages

The presenters noted that smartphones, while convenient, have caused countless compliance issues. Communications as seemingly private and innocuous as a text message present a significant risk, as law enforcement can easily obtain information about texts that a service provider might tell a customer is unavailable. One example offered in the webinar told of a dentist who extracted a tooth from a sedated patient while on a hoverboard, then texted a video of the event to a friend; another example came from an office manager who texted her mother to tell her of pulling two teeth from a sedated patient.

Exam recordings

Many states have one-party consent laws for recording communications, and in such states only the party taping the conversation needs to know that it is being recorded. In these states, a patient might record a physician during an appointment or procedure without obtaining the physician’s permission. Such recordings can be used in malpractice cases, such as a recent case during which a physician made disparaging comments during a colonoscopy, before which a patient had started recording the procedure on his phone. The presenters suggested posting specific policies concerning such recordings, recommending language that prohibits use of recording devices unless specifically permitted by the provider.

Reducing risk

The presenters spoke of the seven elements to an effective compliance program identified by the HHS Office of Inspector General:

  • implementing written policies, procedures, and standards;
  • designating a compliance officer and committee;
  • conducting effective training an education;
  • developing effective communication;
  • enforcing standards;
  • conducting internal audits; and
  • responding promptly to detected offenses and developing corrective action.

One important piece of a program is a compliance hotline to allow employees an opportunity to report compliance issues. Employees should be able to do so anonymously, but also be able to provider his or her name with confidence in the organization’s confidentiality. Employees must be assured that they will not be retaliated against for reporting issues in the organization.

Kusserow on Compliance: Free Webinar! Best Practices for Conducting Internal Investigations

Channeling employees who wish to report allegations or complaints internally is critical to any effective compliance program, as well as to avoid the liabilities and other consequences to having them report externally. The HHS Office of Inspector General (OIG) and Department of Justice (DOJ), as well as other enforcement agencies, continue encouraging “whistleblowers” by offering great bounties for successes from their information. In 2016, recoveries totaled $3 billion with whistleblowers receiving as their share—$519 million. In addition, nearly a quarter-million whistleblowers contacted the OIG directly or through the agency’s hotline during the same period. Wolters Kluwer is hosting a complimentary webinar on January 26, 2017 from 1:00-2:30 PM EST, entitled, “Best Practices for Conducting Internal Investigations.” The presenters are Richard P. Kusserow, former FBI executive and HHS Inspector General, along with Kashish Chopra, JD. Both have extensive experience with conducting internal investigations. Today’s blog focuses on the predication of internal investigations that is also addressed in the webinar in more detail. There are many ways be called upon to respond to a complaint or concern raised by an employee, including compliance officers, human resource management (HRM), legal counsel, privacy/security officers, and risk managers, among others; however, only a few complaints would rise to the level of requiring an investigation.

An investigation is a search to uncover facts and seek the truth of an issue (who, what, when, where, why, how) and involves a detailed inquiry or systematic examination to gather facts and information to solve a problem, or resolve an issue. Other activities can meet this definition, including conducting audits, evaluations, and inquiries. All these other activities involve a detailed examination of facts. The fact is that vast majority of hotline complaints can be resolved fairly quickly—within hours or a day or two—without a formal investigation. Many complaints, allegations, and concerns are routine in nature and may be resolved through normal management procedures or through HRM. In determining how to respond to complaints and allegations properly, it should be a standard practice to, in effect, “triage” all the facts known, similar to what medical staff does when a patient arrives at an emergency room at the hospital. This involves an analysis of the complaint and any allegations to determine who is best equipped to resolve the issues. It may be the multiple functions may need to be involved. From this initial analysis, an investigative plan can be developed.

However, when it is determined that a matter requires an investigation, the key is how to do this properly, preferably using properly trained individuals to conduct the investigation. Anyone called to conduct an investigation must understand how to plan an investigation, conduct proper interviews, organize evidence, prepare written reports, and document management. Is unrealistic to have professional investigators in compliance offices, but certain basic principles should be taught to anyone taking on the role of an investigator, whether they come from the compliance office, HRM, legal counsel, privacy office, etc. Anyone who is likely to conduct an internal investigation should have as a minimum a basic understanding of best practices and methods. The upcoming webinar is designed to provide some of the basic principles in conducting a proper investigation in a timely manner.

Click here to register.

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.