A marketing rep for a large medical equipment supplier was telling me about an overly aggressive marketing campaign that raised significant concerns under Medicare law and the antifraud rules. I asked him who he was supposed to discuss these problems with, according to his company's internal compliance program. “I have no idea,” he replied.
A therapist alerted me to problems in a different company. He knew who he was supposed to talk to about the issues, but, he said, “all of the management people are part of the problem. They are all in this together. I don't know who to trust.”
When the government scrutinizes a compliance system's “effectiveness,” they look first and foremost at whether the company's personnel understand how the program is supposed to work, and whether it actively polices itself. For both legal protection and continuing quality improvement, Rung Three of the ROPE Ladder is key.
One strand on the rung — reporting errors — is harder than it may first appear. HME companies rely on employees to communicate wrongdoing via in-house channels, but research indicates that workers are more likely than not to remain silent about legal and ethical violations in the workplace. According to a national business ethics study sponsored by Indianapolis-based Walker Information and the Hudson Institute, six out of 10 employees who know of or suspect ethical violations in their organizations do not report them.
For companies facing the double challenge of a regulatory structure and rigorous scrutiny from the HHS Office of Inspector General and the Department of Justice, along with the specter of damages and fines under the False Claims Act, the importance of encouraging employees to report compliance problems is especially acute. According to the Walker-Hudson study, common reasons for employee reluctance to report violations include fear of retaliation, lack of an anonymous reporting mechanism, perceptions that management would not respond and a belief that it is “none of their business.”
But effective compliance means convincing employees that it is not only their business — it is their obligation. Set the expectation that if people want to work for your company, they are responsible for reporting suspected errors, non-adherence to policies or ethical concerns. Explain that it is just as bad to see something and not report it as it is to do the bad thing itself. That must be your clear message, and should be incorporated into your training and code of conduct.
These steps, while critical, are just a beginning. Home care companies can emphasize reporting obligations all they want, and employees may still believe that they will be retaliated against, either by managers or coworkers. What is the solution to this problem? The answer lies in the credibility of your organization and its leadership, and the way you execute that commitment from day to day.
Keep the issue visible, and keep reminding people. This demonstrates that you are investing in communicating the message, which tells employees that the company really believes it. For example, put up posters with catchy headlines, and change them periodically so they don't blend into the background.
Other ideas include payroll stuffers about the importance of reporting compliance violations; wallet cards with contact numbers and key information; and compliance-related articles in the company newsletter. Offer feedback. If reporting employees feel like they are shouting into the abyss, the system is not going to work. Conversely, if problems get resolved, word will get out that the reporting system is effective.
The ideal proof of an effective reporting system is a change in behavior on the part of those responsible for inappropriate conduct. Tell employees with well-founded concerns, “If you don't see a change in behavior, then you need to call me back.”
All of these ideas can serve to refresh employees about the company's compliance commitment — and their corresponding obligations.
Materials in this article have been prepared by the Health Law Center for general informational purposes only. This information does not constitute legal advice. You should not act, or refrain from acting, based upon any information in this presentation. Neither our presentation of such information nor your receipt of it creates nor will create an attorney-client relationship.
Neil Caesar is president of the Health Law Center (Neil B. Caesar Law Associates, PA), a national health law practice in Greenville, S.C. He also is a principal with Caesar Cohen Ltd., which offers compliance training, outsourcing and consulting and the author of the Home Care Compliance Answer Book. He can be reached by e-mail at ncaesar@healthlawcenter.com or by telephone at 864/676-9075.
The ROPE Ladder
Rung 1: Articulate the way you want things to run, and note how they run now. Then, tweak your systems as necessary to comply with “The Rules.”
Rung 2: Teach your operating systems to your employees.
Rung 3: Implement a clear and simple method for dealing with problems — identify them, report them, investigate them and fix them.
Rung 4: Give your compliance staff resources to help them keep up-to-date with internal and external changes that may sometimes require you to refine your operating systems.
Rung 5: Monitor your operating systems to make sure they continue to run as you intended.
