Over the last few weeks I have sat in on several interviews by U.S Attorneys and government agents. These interviews have highlighted the value of a few simple actions you can take to greatly improve the outcome of any investigation you encounter.
While the substantive topics of the investigations are very different, ranging from E&M coding to questions about kickbacks, there are several compliance-oriented questions that investigators routinely ask regardless of the focus of the probe.
For example, agents will ask “when you started the job, what training did you receive?” If the answer is “none,” the government will conclude that your compliance efforts are at least somewhat lacking. The interviews almost certainly will include questions about compliance training.
“When did you last have any training?” “Do you know who to go to report a problem?” “Who is your compliance officer?” All of these are questions you might expect to hear, and you want to be confident that every employee can give a cogent answer. This really means every employee; investigations may involve interviews with physicians, non-physician practitioners, nurses, scribes, and receptionists. The training needn’t be long, but it needs to be memorable enough that employees don’t give a blank stare when asked about it. Many organizations require employees to watch a video or take some sort of online session. Those are certainly forms of training, but the format is less important than its memorability.
You may be surprised at how many employees who dutifully watched the annual training video for each of the last five years, when asked when they last had any compliance training, will say “never.” It may not be reasonable to expect employees to recall the name of their compliance officer, especially in a large organization. But you want them to know how to report concerns. They may not have the hotline number memorized, but they should know that there IS a hotline. In a small organization, they should be able to describe who handles concerns.
A key part of training is preparing people for the possibility they may be visited at home. My recent trips have all involved scheduled interviews. Once the government knows an organization is represented by legal counsel, it is unethical for them to contact employees. But before the government makes its initial contact with an organization on a particular investigation, it regularly takes the position that it doesn’t know that the organization has retained counsel on the matter – and therefore, agents may contact employees directly. This position may seem disingenuous, particularly for organizations that have a general counsel’s office, but you need to be aware of it. (The government is always free to contact your former employees as well, and with luck, your former employees may remember the training you provided to them.)
What do employees need to know? That will be the topic of next week’s article. In addition, RAC University will be offering a webinar centering on both how you can use your compliance efforts to prepare for an investigation and what your employees need to know when they are contacted by a government agent. You can register for the upcoming webinar online here.
In addition, if you would like a free trifold card outlining employees’ rights and responsibilities when they are contacted by a government agent, please send an email with “agent card” in the subject line.
Nothing is more satisfying to me than getting a client out of trouble without them paying any money. While I would like to think that the legal arguments we make are a key part of obtaining such a result, there is no doubt that the training you provide employees often proves as significant. If the government concludes that you are making sincere efforts at compliance, the result may be that the case is closed, or that the size of the penalty the government seeks is substantially reduced.
A bit of well-targeted compliance training may, in extreme circumstances, save you millions of dollars.
About the Author
David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and is a member of the RACmonitor editorial board.
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