This fifth and final installment in a series of bulletins discusses a few final tips for health care providers and their compliance officers working cooperatively to establish and maintain effective compliance programs and avoid False Claims Act whistleblower lawsuits.
In the first installment, we discussed some of the challenges compliance officers face and highlighted challenges brought to light by the Halifax case. In the second, third and fourth installments, we introduced the six best practices of an effective compliance program.
A Few More Tips: Avoiding Whistleblower Lawsuits and Investigations
Once you have your compliance program in place and have instituted as many best practices as you can with respect to the structure and operation of your compliance program, what else can you as a compliance professional do to try to avoid being the target of a government investigation or whistleblower lawsuit? First, know and understand your business – that knowledge is key to preventing a whistleblower action. Compliance officers should know and understand their organization’s interests and be aware of the specific pressures that are facing management and employees. Compliance officers can accomplish this by reaching out to human resources professionals and other trusted employees, attending meetings, and really listening to the business issues the organization is grappling with.
Compliance needs and business needs are not always aligned; to be effective and listened to, the compliance officer needs to be in tune with the organization’s business needs and work diligently to weave compliance into the business conversations so that the two become more aligned. Compliance officers who sit in their ivory tower and preach the black letter law and always tell business leaders that what they are proposing cannot be done risk being shut out of the discussions they most need to be included in. Ask questions so you can identify the needs of the organization and work with the business leaders to find a compliant way to accomplish the goals identified. Doing this will keep you at the table for those important discussions and help your organization proactively avoid compliance issues that could be the potential subject of a whistleblower action.
Second, understand that everybody in and around the organization is a potential whistleblower. There is no such thing as only certain types of persons being whistleblowers. Whistleblowers can be competitors, independent contractors, former employees, current employees, physicians, consultants, or patients – they can be anyone. Recently, whistleblower lawsuits have been successfully brought by a consultant brought in to audit claims for a hospital system (Shands) and by an employee in an organization’s compliance department (Halifax) in addition to the usual whistleblowers we have seen over the years. If an organization is acting in a compliant manner, has a culture of compliance with open lines of communication, and responds appropriately when compliance issues are reported, this will go a long way in preventing whistleblower actions from being filed against your organization.
Third, be proactive. Compliance officers should ensure all complaints are investigated and should notify complainants, to the extent possible, that their concerns are being reviewed. The OIG notes that “Information obtained over the hotline may provide valuable insight into management practices and operations, whether reported problems are actual or perceived.”1 In addition, consider seeking outside counsel for guidance on how to investigate significant complaints and to protect communications under attorney-client privilege.2