An essential element of an effective health care compliance plan is the internal investigations policy. Actions by employees, acting in the course and scope of their employment, can subject corporations to civil and criminal liability. Detecting, investigating and remedying such situations are crucial given the regulatory environment under which health care companies operate.
The conduct of the investigation itself can exacerbate the situation. Employees subjected to discipline may initiate litigation which could potentially expose unfavorable information during the discovery process. The regulators may view the investigation as a sham designed to perpetrate a cover-up, which can have greater ramifications than even the underlying violations. There are numerous benefits to a well-drawn internal investigations policy that can minimize these risks.
Well-written policies for internal investigations should have the following characteristics:
1. Impartiality. There should be no pre-conceived notion of what the outcome should be and no person involved in the conduct being investigated should direct the investigation.
2. Fairness. The policy should set out procedures that allow due process and the opportunity for the investigated employees to respond and defend themselves against the allegations. The investigator should keep an investigation is occurring and the subject matter confidential to the extent possible in order to avoid damaging reputations.
3. Detailed and thorough. The investigator should review all possible evidence and should not confine the investigation only to statements by employees. The credibility of those statements should be determined by documents such as charting and emails, rather than the investigator’s gut reaction as to who is telling the truth. The investigator should record the progress of the investigation as it is happening so it is clear what evidence was reviewed and when. This can become important if a witness recants.
4. The investigation should analyze the cause of the problem. This is one of the major reasons for a compliance program. It should be similar to the quality assurance program where procedures and approaches are constantly analyzed and changed to address weaknesses, minimize risks and improve quality.
5. The policy should specify to whom and how the results are communicated so that the issues are taken seriously and needed change can effectively be implemented.
Next week, we will discuss further tips for writing and implementing an internal investigations policy.
