When the OIG knocks, who will answer the door?
When the OIG knocks, who will answer the door?
Agency teaches staff how to handle federal probes
If the long, nerve-wracking investigation by the FBI a few years ago taught administrators at Ruth Constant and Associates anything at all, it was don’t wait for trouble to come to you. Anticipate it and prepare your staff to meet it head on.
Ruth Constant, RN, BSN, MSN, EdD, president and administrator of three freestanding home health agencies in Texas, found her organization knee deep in a federal investigation sparked by a disgruntled employee’s false testimony. For 15 months between 1989 and 1991, Constant, a former National Association for Home Care (NAHC) administrator of the year, fought for her reputation and livelihood. Finally, after months of wrangling with federal authorities, Ruth Constant and Associates, based in Victoria, TX, was exonerated of any wrongdoing.
The employee who caused all the trouble in the first place pled guilty to embezzlement and was sentenced to 24 months in the federal penitentiary. (See Hospital Home Health, May 1997, pp. 59-62.)
Larry Leahy, director of program integrity for Ruth Constant and Associates, oversees compliance programs for the three agencies: Beaumont Home Health Services, Port Arthur Home Health Services, and Wichita Falls Home Health Services. Part of his job is to teach employees how to respond to an emergency, and he is in the process of developing the company’s Crisis/Emergency Management Plan. (See chart, p. 6.)
It is Leahy’s goal to train staff and have written instructions in place at each site covering every crisis from loss of accreditation to workplace deaths, including accusations of Medicare fraud and abuse.
"[Constant’s experience with the FBI," Leahy says, "taught us that when something happens and you are not prepared, there’s the opportunity to say the wrong thing and cause greater mistakes."
Look who’s coming to inspect
Taking a cue from local industry, Leahy patterned his plan after oil and chemical companies in the area that must have plans for responding to hazardous spills or emissions into the atmosphere. "We looked at how they would respond to a situation, who would be the spokesman, who employees contact, and how employees deal with the media."
Leahy began two years ago by asking agency directors to analyze the risks listed on the Crisis/Emergency Management Plan. The goal was to get "key staff to identify the crisis, its likelihood, impact, and prioritize them," he says.
But plans changed in the wake of the FBI probe. Constant asked Leahy to concentrate on developing a plan for responding to the Office of Inspector General (OIG), Occupational Safety and Health Administration (OSHA), as well as the FBI and put other response plans on hold.
The result has been the development of a written company policy for OSHA inspections, which was made part of the company’s Policy and Procedure Manual, and a written plan for visits by other government agencies, "including the state surveyor process," Leahy says. Procedures for these situations have become part of the 53-page corporate compliance manual, contained in a chapter titled, "External Investigations."
Inservices for everyone
When the compliance plan was published, Leahy held inservices not only for agency directors and senior leadership but for all employees. A key part of the inservice was to familiarize employees with all the agencies that could show up unannounced. Employees were given a list of the following agencies:
• Inspector General for the Railroad Retirement Board (may inspect to see that any services billed to Medicare for retirees are indeed provided);
• Inspector General for the Office of Personnel Management (may inspect to see that any services billed to Medicare for retirees are indeed provided);
• Inspector General of AMTRAK (may inspect to see that any services billed to Medicare for retirees are indeed provided);
• Criminal Defense Investigative Services for the CHAMPUS program (may inspect to see that any services billed to Medicare for retirees are indeed provided);
• FBI;
• Department of Health and Human Services Office of Inspector General (OIG);
• Health Care Financing Administration (HCFA);
• Drug Enforcement Agency (DEA);
• Postal Inspection Services (mail fraud);
• Inspector General of Labor Department.
Each government agency’s mission is explained to employees so they will know in advance what an inspector might be seeking.
Upon arrival of a government agent, agency directors are instructed to notify the administrator (Constant) or Leahy. Leahy determined the first person likely to have contact with any government inspector would be the "on-site director" at the agency, not "Dr. Constant or me."
Leahy explains the steps in the process if, for instance, an FBI agent should appear in the reception area of an agency. The receptionist should:
• Identify the agency the person is representing.
• Ask to see credentials and a business card.
• Photocopy credentials and the business card.
"A caveat here," warns Leahy, "if the person refuses to give you their credentials, don’t hinder the investigation in any way. Just start a log and write down everything. For example, 8:30 a.m., FBI agent was asked to provide credentials and a business card. He refused to do so.’
"Log things chronologically," Leahy advises.
The chapter covers such things as what to do when records are requested; what to do about interviews with employees; correspondence to employees letting them know a probe is going on; advising employees of their rights during an investigation.
"Next year, we probably will do some role playing, such as how to handle an interview with an investigatory agency," Leahy says.
Document meticulously
Instructions on handling an OSHA inspection include advice to video tape the inspectors as they walk through the agency. "This may or may not be allowed," Leahy cautions. "And for an ORT probe, we recommend using three tape recorders during the exit interview two for us and one for the ORT lead interviewer. However, I have talked with agencies that said they were going to tape, and the OIG said no exit interview.’ But taping the interview protects all parties," he says. "That way there can be no changing of an interview transcript. You have three originals."
Leahy explains that "these documents are just tools. Reality will always be a lot of ad-libbing. For example, I was shocked when Dr. Constant told me they weren’t allowed to use the phone to call a lawyer the day the FBI raided her agencies."
So what can you do? "The key thing for the FBI or OIG is to have a log and document meticulously everything that occurs,"Leahy says. "For example, record the time, the agent’s name who advised you not to use the phone, this is all good information to refer to legal counsel later on."
The time involved in developing the media response program so far has taken approximately 500 hours, Leahy says, including writing, staffing, reviewing plans, and brainstorming for ideas. "That’s probably a low estimate. That will not include the educational follow-ups. And that doesn’t include the inservices for each agency to have with its employees.
So far, Leahy says, the company has spent $25,000 to start its compliance program, more than $1,000 for reference materials and printing of the two manuals.
The compliance plan was developed without the advice of an attorney, Leahy says, conceding this is a potential weakness. "We have not had legal review to see if it will stand up under Federal Sentencing Guidelines," he says. "Once you get lawyers involved, the cost is high."
However, Leahy did acquire a copy of the Federal Sentencing Guidelines, as well as at least 10 other reference books on designing compliance plans, including a book published by Atlantic Information Services of Washington, DC, titled 14 government-Endorsed Health Care Compliance Plans.
Plans are eventually to publish media guidelines and an emergency response booklet for all the situations under evaluation now, Leahy says. He wants staff at the different sites trained so they can be trusted to say and do the right thing in a crisis.
"Our goal is to respond like Johnson & Johnson to the Tylenol crisis," Leahy says, "not like Exxon with the Exxon Valdez."
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