Whistleblowers are made, not born. When home care company personnel are treated with respect and appropriately kept in the loop, they will almost always resist the temptation, born of frustration, to become whistleblowers. Smart companies establish internal reporting systems that further this goal. Here are four suggestions for a smart reporting system.
First, train all supervisors to be sensitive to employee concerns. Publicizing your company's commitment to the compliance program with high-level endorsements is important, but it is equally important to ensure that all supervisors share that vision. Employees often share their concerns with their immediate supervisors rather than using a hotline or reporting to the compliance officer. If upper management encourages reporting problems, but a supervisor three levels down ignores the matter, a frustrated employee may bring his concern to court.
The best way to address this problem is to train supervisors and managers to listen carefully and sympathetically to employee concerns. If you take your employees seriously, listen to them and follow through on their concerns, you will have a much better chance of avoiding qui tam actions.
Second, offer feedback to employees who voice concerns. Let the employee know that you are taking action on his problem. The employee should be offered an opportunity to check on the status of the inquiry. For example, callers to a hotline might be given a number assigned to their complaint so they can monitor the case.
Third, develop a secure document control and retention policy. Qui tam plaintiffs must submit any information they have that supports the allegations of wrongdoing in their complaint to the government, and they often accomplish this by taking records from their workplace. A secure document control and retention policy can help keep sensitive information from winding up on the desk of a U. S. Attorney. (This is also important for HIPAA privacy compliance.)
Fourth, consider hiring an ethics consultant to assist with your compliance program. Compliance officers can run into trouble if they publicize a level of commitment that is not true throughout their company.
It is also important to learn how to deal with troublemakers. Remember that personnel may be motivated to use the hotline, or a suggestion box, inappropriately. A substandard employee may view it as a way to protect himself within the cloak of a “whistleblower.” Other personnel may view it as a means to get even with fellow employees or supervisors, whether the alleged offenses are real or imagined. Even when an employee does not fabricate allegations of wrongdoing, he may not be telling the entire truth of the matter as he understands it.
Make it clear that personnel will be subject to severe discipline if they exploit the hotline to spread false rumors. However, any such rule must also make clear that discipline will be meted out only after there is substantial evidence of fabrication. Otherwise, sincere employees who happen to possess inaccurate information may be subject to persecution. This is unfair, and sends an extremely negative message to the organization's employees. It may give rise to a lawsuit.
Unfortunately, home care companies must be willing to accept a certain amount of improperly motivated hotline calls. Fortunately, because an effective reporting system tries to get the name of reporting personnel, the identity of an employee who uses the hotline improperly will be known to the company.
Another hotline danger is the employee who tests the waters. This caller typically utilizes the hotline to inquire whether some activity of an alleged colleague is in accordance with company policy. In fact, the caller is actually seeking permission, or forgiveness, for some action he or she already has taken. These callers will often try to argue with the hotline staff that certain actions are indeed proper. That may prompt the company to initiate an investigation of its own against the reporting employee.
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.
