Avoid Whistleblowers With Credible Compliance Channels

Most DOJ/OIG Cases Predicated by “Whistleblowers”

The Federal government and many state agencies encourage reporting potential violations through their reporting systems. The result is that most DOJ health care cases come from qui tam relators (“Whistleblowers”), who file cases directly with them.  In 2016 alone there were 702 qui tam suits filed, an average of about 14 new cases a week.  Out of $4.7 billion civil fraud settlements and judgments, $2.5 billion were from health care entities. In addition, more than nearly a quarter million whistleblowers contacted the OIG directly or through their hotline during the same period.  Interesting is that a substantial percentage of people directly contacting government agencies do so voluntarily because they sense reporting through the company hotline will not be well received or acted upon appropriately. To reduce the likelihood of external “whistleblowing”, it is critical to promote internal reporting and reassure the workforce that the organization will seriously act upon information provided by them through channels created for this purpose.  The existence of this avenue of communication can assure employees that their problems and concerns can be addressed internally without any need to report externally.

Compliance Communication Channels

The OIG, Sentencing Commission, DOJ, and other authorities call for hotlines to (a) permit employees to report anonymously; (b) offer confidentiality for those that identify themselves; and (c) warrant non-retaliation or reprisals for reporting potential violations of law, regulation, Code or policies.   Virtually all health care entities maintain a hotline for reporting wrongdoing and to channel employee concerns, allegations, and complaints to “in house” staff to address them. Failure to offer, encourage use of, or act upon information provided by this compliance channel of communication creates a serious risk of increased exposure to liabilities.   If employees cannot or do not feel comfortable reporting internally, they can do so outside the organization.  No health care entity wants their dirty laundry exposed in the press; neither do they want to contend with employee lawsuits or have complaints directed to government agencies.

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Good Business Practice

Encouraging internal reporting can lead to identification of emerging issues or problems that can be addressed by the organization before (a) it escalates into a potentially big problem and causes much damage; or (b) employees are likely to look externally for a solution with an attorney, government agency, media, etc. Hotlines can also serve a variety of other social purposes, such as seeking clarification on policy questions or allowing employees to simply “vent” their frustration if they do not necessarily want to report any material wrongdoing.  These non-substantive calls provide insight into employee morale, work place problems, management issues, etc.  The worst case scenario would involve an employee believing no one inside the organization will address their concerns or act upon their complaints, and they feel resolution can only come by reporting the problem to external authorities.

Multiple Compliance Communication Channels

The OIG suggests that there should be multiple compliance communication channels with hotlines, by far, being the most important for effective compliance programs. Employees may differ on their preferred method of reporting compliance concerns, however, when it comes to hotlines, best practices would be to include a live operator hotline for employees to call into as well as web-based reporting systems which would allow employees to self-report compliance issues anonymously themselves.

  • Confidential Hotlines. Live operators are the preferred method and encouraged by enforcement agencies. It permits callers to speak to a live person to tell their entire story and this interaction provides optimum results in sorting out issues during the call.   It also permits those wishing to “vent” with someone, but not report wrongdoing to do so.
  • Recorded Messages. Compliance communication relying upon callers leaving a recorded message or report is a bad practice. It permits no debriefing of the caller and worse was that callers were not likely to want to leave anything sensitive on a recorded message.  In most cases, callers who leave message will provide only limited information and likely leave out critical details.  Finally, the call source might be traced, thus denying anonymity.
  • Email Reporting. This is a bad compliance communication channel practice, as it is not a secure system and the information received is often coming from a known source, hence no anonymity. It also means callers can claim confidentiality with the entity bearing the burden of protecting them.
  • Web-based Reporting. Most of those reporting potential wrong doing still prefer operator answered hotlines, however, compliance complaints can be self-reported through a web-based reporting system as well. This method allows the individual to …

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