As we continue to climb the ROPE Ladder to compliance success, Rung 3 probably inspires the most fear and trepidation. The process of identifying problems and then investigating and correcting them is perceived (often correctly) to involve finger-pointing, blame, punishments and failure. But within the context of the ROPE System, Rung 3 addresses problem-solving.
In this framework, it is essential for a home care company to create a mechanism to identify when things are not operating correctly, and then to fix them. This is just good business.
In reporting errors, both the federal sentencing guidelines and the OIG guidance for DME companies make clear that an effective compliance system must include policies that encourage and process communications from both personnel and customers. Such a reporting system provides the company with a method for self-evaluation. It is essential to enable the company to uncover problems before they become systemic or pervasive.
One key to a successful reporting policy is to obtain employee confidence in the efficacy of the policy. For this reason, senior management must emphasize and demonstrate its commitment to compliance efforts and the importance the organization places on full employee disclosure.
To encourage reporting, management must emphasize clearly that it will not tolerate or engage in retaliation against personnel who report suspected wrongdoing. In some circumstances, a company-wide acknowledgment of an employee's commitment to identifying problems is valuable. In other circumstances, a private “thank-you” from middle or senior management is more appropriate.
Some organizations include financial incentives for reporting suspected problems. Here, though, the company must be careful about encouraging a “bounty hunter” mentality, as this can backfire and result in a paranoid or mercenary atmosphere within the company.
When a home care company first unveils these reporting procedures to employees, it is wise to remind staff that their reporting of improper activity can avoid the serious consequences of a federal investigation or prosecution. Explain that the adverse consequences can include harm to the company's reputation, loss of profits, huge fines, exclusion from the Medicare and Medicaid programs, and even jail.
At the same time, however, it must be made explicitly clear that false or bad-faith reporting will not be tolerated. This should be communicated during the company's initial rollout of its compliance system to personnel, and also should be built into the system itself. It should be clearly communicated to new employees and reiterated with every refresher training session for existing personnel.
The company also should communicate to employees how it will use reasonable efforts to preserve the confidentiality of reporting personnel. But the company cannot promise confidentiality; a time may arise where the employee's identity may become obvious to others. Further, his or her identity may have to be revealed in the event government authorities become involved.
For this reason, it is essential that the company emphasize that good-faith reporting is mandatory and remind personnel that problems can arise for many reasons other than a staffer's intent to violate company policy or the law. Therefore, the purpose of reporting is to focus on problems with the company's systems rather than pointing fingers at particular employees.
Within this cursory and preliminary discussion of effective reporting of problems, the most important points to remember are that your message must emphasize that reporting problems is a necessary and expected part of your program; that the prospects are for problems to crop up from time to time; that such problems do not necessarily reflect badly on any personnel; and that, regardless, reporting of problems is a mandatory obligation for every single staffer within the company.
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.
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.
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.
