United States: Developing A "Best-in-Class" Internal Investigation Policy

The regulatory labyrinth which overlays the health care industry provides ample opportunity for employees to commit violations of law that expose their employers to civil and criminal liability. When hospitals and other providers suspect or learn of misconduct by employees, they must examine what happened and take corrective action promptly. In undertaking to investigate questionable behavior, however, those organizations should understand the risks of conducting inquiries in an inconsistent or indiscriminate fashion. These risks include lawsuits from disciplined or discharged employees, as well as skepticism from government regulators about the legitimacy of the process. In those cases, the manner in which the investigation is conducted can be as important as the findings themselves.

We spoke with William Athanas, John Park, and Sheila Sawyer from the law firm Waller to gain insight into the value of an internal investigation policy as part of every health care organization's compliance strategy.

1) Where do hospitals and health systems most commonly expose themselves to liability in conducting an inquiry into employee misconduct?

In responding to a government investigation, a primary area where health care providers expose themselves to liability is by conducting their own internal review in a fashion that effectively undermines the organization's credibility. Ultimately, the credibility of an internal review is an essential commodity to convince federal regulators that the complaint has been resolved, or is something that is not systemic across the organization. Hospitals and health systems may face significant consequences—both financial and operational—by undertaking an internal investigation that leads regulators to believe that it was designed to overlook any deficiencies, or even if undertaken in good faith, was flawed in its execution.

In situations when the government is not the impetus for conducting an internal investigation, it is critical to avoid the "silo effect" when reviewing allegations of misconduct. Information about employee misconduct may come in through a variety of avenues and different departments: human resources, compliance, legal, risk management, quality assurance, or peer review. It's important that these departments coordinate and consult regularly with each other to ensure that the report of employee misconduct is fully and properly investigated.

For example, some "routine" HR complaints will implicate broader patient care, billing, or compliance issues. A health system must effectively communicate across different areas of the organization to understand the full implications of a particular complaint, even if it's not apparent on the face of the report that it raises potential regulatory concerns. A lawsuit from a disciplined employee can quickly turn into a larger compliance problem if not properly managed.

Another common shortcoming is the failure of providers to get at the root cause of the misconduct. Any time there is a violation or allegation of wrongdoing, employers should always be asking, "How did this happen?", "Why did this happen?", and "How can we improve our compliance program so that this does not happen again?" These are critical questions that always need to be asked, so that from an organizational standpoint, a hospital can put systems and policies in place to prevent the same conduct from occurring again in the future. That is really the hallmark of an effective compliance program, and what the government expects to see.

2) How may the adoption of an internal investigation policy minimize employers' risk?

The government expects that every company in the health care industry maintain a compliance program that is effective, and capable of detecting, investigating, and preventing employee misconduct and Fraud & Abuse. An internal investigation policy is the primary mechanism for safeguarding that an organization has thoroughly and appropriately reviewed all allegations of wrongdoing.

Foremost, an internal investigation policy serves as a resource for carrying out a comprehensive and uniform examination based upon underlying principles and standards. This provides tangible evidence of the commitment that a provider has to methodically vetting all cases of employee misconduct or potential noncompliance. Additionally, an investigation strategy that includes a transparent and recognized anti-retaliation policy minimizes the risk of lawsuits from terminated employees who previously filed a complaint.

3) What are the essential components of an effective and comprehensive internal investigation strategy?

  • Impartial: Health care organizations should demonstrate that facts have been gathered in a fair and disinterested fashion, and the investigation has taken an unbiased look at the complaint at hand. Many, if not most, investigations that arise can and should be conducted by internal compliance and in-house counsel. However, it's important to understand that there are some types of allegations that warrant the involvement of outside counsel to serve as an independent, neutral third-party. Although this decision is not always easy, when making the decision whether to involve outside counsel, organizations should consider nature and seriousness of the allegation, whether it suggests systematic wrongdoing, and whether the alleged wrongdoing was directed or tacitly approved by senior management or those who will necessarily be involved in the internal investigation.
  • Uniform: While employers won't be able to conduct an investigation in exactly the same manner each time due to different factual scenarios, the underlying approach and principles should remain consistent across operational and geographic lines. A systematic process must be in place so that the individuals in question receive a notice of the allegations against them, are provided an opportunity to respond, and there is a formal procedure is in place for gathering documents and interviews.
  • Confidential: Organizations should keep not only the content, but in many cases, the existence of an internal investigation confidential to the greatest extent possible. Discretion is imperative to avoid unnecessarily tarnishing the reputation of an employee if allegations of misconduct prove unfounded.
  • Thorough: An internal investigation should gather and review all evidence that is likely to have a bearing on the subject matter, both in terms of documentation and oral testimony. This means compliance teams must interview all individuals and witnesses involved in the allegation to assess the credibility of the complaint. Employers should also be conscientious in detailing the review process to make certain a written record exists that reflects the thoroughness of the investigation. Providers need to keep in mind that the findings in this report may need to be communicated to other key constituents, such as the compliance committee, the Board of Directors, and potentially the federal government.
  • Complete: Often there are corrective actions that are put in place as a result of the investigation, making follow-up critical to confirm that the necessary remedial steps were taken to achieve compliance. Putting in place a timeline for executing a corrective action plan and contacting those responsible for implementing the plan to make sure that it was completed is essential for employers to close out an internal investigation.

4) What steps should in-house counsel and compliance teams take today to integrate new policies into broader compliance efforts?

Health care providers should first evaluate existing processes or procedures, informal or otherwise, for dealing with internal investigations when issues arise. In many cases, organizations may have a set of protocols that have evolved over time, or a more formalized system in place. Whatever the situation, employers should assess their current state of readiness, existing gaps in internal processes, and ways to move toward a more comprehensive investigation policy.

Second, the development of standard forms or templates can serve as a useful guide to ensure that the investigation policy is followed during an investigation. A checklist should include the type of allegation, how it came to an organization's attention, who was interviewed, what documents were reviewed, the findings or conclusions, and if correction action was taken. This ensures that a provider doesn't overlook any important steps in the investigation process, and provides a comprehensive record to use in the event of an employee lawsuit or government investigation.

Previously published by The Advisory Board Company: Health Care Law Roundtable, March 2013.

For further information visit Waller

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions