Confidentiality Counts

When investigating and fixing problems, many staffers are reluctant to come forward unless they are promised confidentiality. This is not an easy promise to make.

Serious and costly mistakes can occur when addressing confidentiality in a reporting system. For example, more than one health care company that handled the issue of reporting confidentiality indecisively has found itself looking at the wrong end of a wrongful discharge lawsuit when a hot-line caller who disclosed his identity was later discharged in a routine cutback. The allegation was that the employee's disclosure put him on the “discharge list” for the subsequent cutback.

Still, home care companies can take steps to reduce the ability of a caller who reports a problem — and who is later (coincidentally) discharged — to claim that the discharge was retaliatory.

First, keep clear records of those few people to whom the caller's identity is disclosed to demonstrate that the disclosure was necessary and limited, and that those people were not in a position to retaliate or had no motive to do so. Second, have a clear written policy limiting who is permitted to learn the identity of callers and what circumstances justify that disclosure.

Third, routinely advise callers to retain their confidential status by not disclosing their communication to other parties. Then, a caller who violates policy and discloses the fact of his phone call to friends or colleagues will need more proof than the mere fact of the discharge to show a causal relation between the reporting call and the discharge.

Some recommend that hotline representatives caution callers not to disclose their identity except when the hotline agent sees a specific reason for it. They conclude that this enables the representative to retain control of the call and minimize the ability of the caller to claim retaliation for any coincidental future discipline or discharge.

But there are two sides to this debate. Others suggest that anonymity is rarely wise or even possible. There are times when the caller needs to be contacted for further information. Moreover, an investigation following a phone call will frequently lead to clues to the caller's identity.

If a home care company has an “anonymity policy,” this subsequent discovery of the caller's identity may be perceived as a violation of that anonymity. Plus, they suggest, a policy that requires a hotline caller to disclose his identity (except in special circumstances) will reduce the number of inappropriately motivated calls.