March 29, 2017

Who Filed That Compliant Against Me?

By

Who complained?

That might seem like a totally reasonable question. But it’s something that compliance officers might want to discourage from being asked. 

The issue was driven home for me recently when a client in the desert Southwest had an unpleasant interaction with a representative from the local licensing board. The board was investigating a situation that had occurred years earlier, when a physician was accused of some anger-management issues. The physician called the board to get details about the inquiry (it might have been best for the physician to have someone make the call on his behalf, but that is a topic for another article). 

Recounting that conversation, the physician explained that the agent was very friendly in the beginning, freely offering information about the nature of the investigation. The physician asked several clarifying questions before asking who filed the complaint. The investigator refused to tell him. The physician said that by the end of the call, the agent seemed far more reserved and less friendly. That worried him. He was at a loss to understand her change in tone. 

I am not. I am willing to bet that the agent was bothered by the fact that the physician wanted to know who made the complaint. She assumed, rightly or not, that the physician wanted to identify the individual so he could take some sort of retaliatory action. I know this physician rather well, and I'm confident that his true motivation was to be able to address the specifics of the complaint. He assumed that without knowing who raised the issue, he would be unable to talk about the situation and explain his side of the story. When I offered my theory as to the change in the agent's tone, he was flabbergasted. He assumed he had a right to confront his accuser, if not literally, but certainly by knowing all of the specifics about the complaint. I totally understand his perspective. The Sixth Amendment to the constitution gives every American the right to confront his or her accuser in a criminal case. That shapes our view of what is fair. People expect to be able to discover who made an allegation so they can question the person’s sincerity.

In the compliance world, and in the eyes of most regulators, the Sixth Amendment becomes relevant only when a case goes to trial. The compliance world places a premium on protecting accusers from this sort of confrontation. 

There are two separate points I would like to make in this article. First, it is important to remember that there is a reason the Sixth Amendment exists. When individuals can make anonymous accusations, there is a risk that they will use the anonymity to put forth dishonest claims. I think that most compliance professionals are already acutely aware of this reality, but it is worth a reminder. 

The second point may be less obvious. When someone who is the subject of an allegation pushes aggressively for the identity of the accuser, most investigators will look askance at the accused. Therefore, it is worth including in the compliance training process a suggestion that people who learn of an investigation refrain from asking questions about the accuser. My physician-client would have been better off had he not asked the board about the complainant’s identity.

Take the time to educate people that while it may seem reasonable to ask who is bringing an accusation, government agents will interpret this inquiry negatively. They will think, “the question isn’t who made the claim, the question is whether it is true.” When the allegation relates to personal interactions (as it did in this case), the accused needs enough details about the situation to be able to respond, but if there were multiple people present, it is unnecessary to know which individuals raised concerns.

It is relatively common to have whistleblowers complain that they faced retaliation for raising an issue. Preserving the individual’s anonymity doesn’t eliminate the risk of a retaliation claim, but it lowers it. Perhaps more importantly, evidence about an inquiry into who made the complaint makes it easier for the whistleblower to claim that there was interest in retaliation, because they can argue that the focus on their identity implies a desire to retaliate.

A good compliance process prepares employees for possible interactions with the government (I recommend providing employees with extensive training on this point. As part of that education, I include a laminated card with tips for interacting with government investigators. If you would like one or more of these cards, please send me an email that includes your postal address). 

As part of that training, it is worth explaining that with any interaction with the government, or with internal compliance professionals, there is a real benefit to suspending your curiosity to ask about the identity of people making complaints.  

David M. Glaser, Esq.

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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