From The AIS Bookshelf: Chapter 4: Initiating and Conducting Internal Investigations

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1 From The AIS Bookshelf: Chapter 4: Initiating and Condcting Internal Investigations Condcting Internal Investigations in Health Care Organizations Condcting Internal Investigations in Health Care Organizations: A Practical Gide on How to Resolve Allegations of Wrongdoing Richard P. Ksserow Chief Exective Officer Strategic Management Systems, Inc. This PDF incldes a 11-page chapter on Initiating and Condcting Internal Investigations from the AIS book Condcting Internal Investigations in Health Care Organizations. For more information and to order the entire 304-page book, click here. This PDF chapter of Condcting Internal Investigations in Health Care Organizations: A Practical Gide on How to Resolve Allegations of Wrongdoing is free for yor review and entitles yo to keep one copy on a single compter (not on a network or shared drive of any kind) and print is prohibited by international and U.S.A. copyright laws and treaties, and wold sbject the violator to penalties p to $100,000 per copy distribted.

2 Chapter 4 Initiating and Condcting Internal Investigations Once the Predicating Athority has reviewed a complaint, allegation, or other information abot a potential wrongdoing and decided that the matter warrants frther inqiry or investigation, the next step is to initiate the investigation. Best Practice Only initiate an investigation if there are clearly defined objectives and logical leads to achieve them. This entire process of assessing complaints, developing an investigative response, and initiating the investigation shold take place within a day of initial receipt of the information. Before the investigation can get nderway, the Predicating Athority, working with the Responsible Investigative Athority, shold decide the following: What role, if any, will Legal Consel play? Who will condct the investigation? Who will be the Deciding Athority responsible for determining what action is needed on the reslts and who will implement the decision, once made? One critical decision before initiating an investigation is determining whether there is a role for Legal Consel in this particlar investigation. Consel can provide the needed gidance regarding sensitive isses, advice on matters related to law and reglation, as well as be able to assist in protecting information from improper disclosre. Dring the initial evalation of the complaint, the Predicating Athority will have conslted with Legal Consel if the allegations appear to be sensitive or a violation of the law, regardless of its perceived seriosness. If the infringement is minor, Legal Consel may not be involved in the ongoing investigation bt wold be available for gidance if reqested (see Chapter 16). 31

3 Condcting Internal Investigations in Health Care Organizations Factors to Consider When Initiating an Investigation (1) Understand the overall prpose and objectives for an investigation. (2) Identify the organization s policies, procedres, and Code of Condct, as well as state and federal laws and reglations, implicated in the complaint. (3) Know what facts and evidence are needed to resolve the matter. (4) Take into consideration who will be condcting the investigation. (5) Consider the implications once the investigation becomes known. (6) Know who will need to be interviewed and in what order. (7) Consider the nmber, type, and volme of docments to review. (8) Establish the level of evidence needed to make a determination of action. (9) Establish the time frame for completion. (10) Identify the Deciding Athority who will act pon the reslts of the investigation) Selecting the Investigator At this point the Predicating Athority trns the matter over to the Responsible Investigative Athority who will need to decide who is best sited to condct the investigation. Depending on the complexities of the problem, he or she may wish to conslt with the Predicating and/or Deciding Athority on what is reqired to accomplish the tasks. Choosing the right investigator(s) is one of the critical decisions that mst be made in initiating an investigation. Ideally, an investigative team is most efficient and effective when interviewing witnesses and confirming findings. It also is a more expensive expenditre of resorces. For most investigations, however, a single investigator is all that is necessary and will assre consistency in the entire investigation. Internal investigators shold have some experience in condcting investigations and inqiries. The more experienced the investigator, the more he or she will nderstand how to evalate allegations, fact, and evidence, along with what to look for and how to find it. One of the most common and costly mistakes is for organizations to condct investigations withot properly training the individals responsible for the investigation. Proper condct and solid character are two vital qalifications for an investigator. The investigator mst be objective and fair and convey this position to employees. By always acting professionally, the internal investigator will project this image. The internal investigator mst be free of conflicts of interest. The investigator mst be organizationally separate from the immediate management of the parties to the complaint and free from prior involvement in the circmstances of the particlar case or with any of the individals involved. Another important consideration in deciding who will lead an investigation is a matter of relative rank. The person condcting an investigation mst not be sbordinate or report to the sbject of the investigation, as sch a relationship wold raise the qestion of whether the process cold be 32

4 Chapter 4: Initiating and Condcting Internal Investigations fair and objective. In some cases the sbject of the investigation may be a senior management, sch as the CEO, COO, CFO, board member, etc. This may create problems for a proper, credible investigation and may be intimidating to the investigator and others involved in the investigation. Under sch circmstances, engaging an otside investigator may be the answer (see Using an External Investigator, below). Investigator Knowledge, Skills, and Qalifications The individals condcting an internal inqiry or investigation shold know the relevant laws, reglations, and standards, as well as the organization s policies, procedres, and Code. The internal investigator mst be able to properly devise, direct, and execte an investigative plan. This incldes gathering and verifying facts in the allegations and identifying possible irreglarities or alleged miscondct. Frthermore, the internal investigator mst be able to prepare a complete, accrate, and well-written report on the reslts of the investigation or inqiry. The investigator also mst be able to relate well to people and have some training in condcting interviews. Investigator Knowledge and Skills Knowledge Investigative principles, practices, and techniqes Ability/experience for specific type of inqiry Organization operations, activities, and fnctions Applicable laws and reglations Organization policies/procedres, Code of Condct, and ethics and practices Skills Analytical: To evalate facts and draw sond conclsions and make constrctive recommendations Interpersonal: To relate with and obtain information from people Professional: To convey a professional demeanor Commnication: To deliver concise, factal smmaries of reslts of the inqiry orally and in writing The internal investigator will need to follow a nmber of professional gidelines to achieve optimm reslts. Here are 11 key considerations in selecting an internal investigator: (1) Proper qalifications. The investigator mst be knowledgeable and preferably experienced in condcting investigations. Special qalifications are reqired for certain types of investigations, especially those related to discrimination and harassment. (2) Thoroghness. The investigator mst be diligent and thorogh, in accordance with all applicable laws, rles, and reglations. (3) Respectfl. The investigator mst condct inqiries with a de respect for the rights and privacy of all those involved, inclding both the person who made the complaint, as well as the named sbject of the complaint. 33

5 Condcting Internal Investigations in Health Care Organizations (4) Impartiality. The investigator mst condct all inqiries in a fair manner and with perseverance to determine the facts. By definition, this means that anyone who has a personal or professional relationship of any type with either a complainant or sbject of the allegation cannot meet the impartiality test. (5) Objectivity. All information and evidence mst be obtained and reported in an nbiased manner to either prove or disprove the allegations. (6) Timeliness. All inqiries mst be condcted and reported in a timely manner. Delay damages not only the individals involved, bt the organization as well. (7) Discretion. Dring the corse of the investigation, the internal investigator mst take care to protect confidences, as well as the progress of the investigation. This incldes any theories or assmptions abot the corse of the investigation. This discretion is particlarly important when drawing conclsions abot the veracity of the complainant, sbject, and other witnesses. (8) Appropriate techniqes. Specific methods and techniqes sed in each inqiry mst be appropriate for the circmstances and objectives, and any techniqes sed mst be in accordance with clearly established procedres and in consonance with applicable laws and reglations. (9) Independence. In all matters relating to an internal inqiry, the internal investigator mst be free, both in fact and appearance, from any impairment to his or her impartiality. Any factor that may affect independence mst be reported and resolved with the Responsible Investigative and Deciding Athorities. (10) Ability to commnicate. Investigators will enconter and need to commnicate with all types of personalities. Some people will be aggressive and hostile, others shy. There will be differences in edcation and position. Some will be able to express themselves well; others will need a lot of work to draw ot needed information. (11) Unflappable. Investigators mst be patient and not sccmb to time pressres or frstration with those being interviewed. Tip Investigators condcting interviews need to take notes and a shorthand system of note taking will facilitate the process and not interfere with the interview. Proper oversight of the investigator and investigation is a critical element to ensre consistent, high qality investigative reslts The Responsible Investigative Athority, in consltation with the Deciding Athority as necessary, mst ensre and approve all methods and techniqes as appropriate for the objectives and ensre that fairness and impartiality are maintained. This incldes making sre that the evidence is reported in an nbiased and objective manner. Using an External Investigator As noted above, sometimes it makes more sense to seek otside assistance in gathering information, making inqiries or otherwise spporting an investigation de to circmstances sch as the following: Needed technical expertise. An otside expert may be needed to deal with a highly technical or complicated reglatory isse. 34

6 Chapter 4: Initiating and Condcting Internal Investigations Cover for the Compliance Office. Sometimes the isse may be so hot that it wold be prdent to have an otside athority assist with determining facts and findings. Rank of sbject. The sbject of the investigation may be so inflential in the organization that it wold be difficlt for an internal investigator to condct the investigation. Needed investigative skills. In some cases the investigation may reqire highly qalified investigative expertise beyond that which is fond in the organization. Legal isses. The problem may reqire legal analysis and/or the direction of Legal Consel to protect against nathorized disclosre. Inadeqate resorces. The organization may not have enogh resorces in hose to condct a labor-intensive internal inqiry or investigation and meet its other obligations. Dties of the Investigator Once the Responsible Investigative Athority assigns the investigator the responsibility for the complaint, he or she will conslt with the athority to be sre the scope and direction of the investigation will address what will be needed at the conclsion of the case. Then he or she will follow a series of steps: Develop the investigative plan. Establish the scope of the investigation. Gather docments and evidence. Develop the case file. Condct and report interviews. Draft the investigative report. Report the reslts of the investigation. Manage the investigation records. Developing the Investigative Plan The investigative plan establishes the basis for investigation and the reasons for its predication. It also otlines the steps that the investigator will need to follow to develop the case and to gather evidence reqired to resolve the matters; it will identify who to interview and what docments to obtain. The plan shold be developed qickly, preferably on the day the predicating information is received. This process, in trn, leads to the creation of the case file. Investigative planning really began with the initial triaging of the complaint and allegations and the sorce of the complaint. Once an investigator receives a case, he or she shold contine evalating the information in more detail. Dring triaging the focs was on what action, if any, was needed in response to the allegations. However, at this stage, the objective moves to determining how to approach the problem and secre the needed information and evidence to resolve it. 35

7 Condcting Internal Investigations in Health Care Organizations Tip Depending on the natre of the complaint, it might be worth toring the area where the incident or problem is alleged to have occrred a sort of crime scene examination. This may prove sefl in planning what the investigation will reqire, sch as the nmber of people to interview, and in nderstanding descriptions provided dring the interviews. To assist in planning the investigation, the investigator shold address the following factors: Who is the complainant and how has he or she been viewed by management in the past? Is the person a high-performing, well-regarded employee or one who has been poorperforming and possibly a condct problem? Does the complaint report an isolated incident involving only one or few people, or are there implications that it is a widespread, systemic problem that involves many people? Who is the sbject of the complaint? Is it a high-ranking exective, immediate spervisor, co-worker, otsider, etc.? How many people wold have to be involved in the investigation as witnesses? How many and what kind of docments may be involved in the investigation, and who will have them? Tip Sometimes a cople of people brainstorming on what kind of docments and physical evidence wold be helpfl to the investigation can resolve this qestion qickly. Jst thinking abot all the different types of records the organization keeps and which ones might be sefl shold prodce many ideas. This process will vary, of corse, depending on the seriosness and complexity of the isses. The more serios the allegations, the more work shold be done in investigating all the facts and circmstances. Only by careflly considering these isses in advance can the investigator properly formlate a strategy. In most cases this whole step is redced to a qick assessment of the isse and a cople of inqiries withot the need for a formal investigation. However, for those isses warranting a fll investigation, the investigative planning stage may be the most important element of the entire investigative process. It is the fondation pon which decisions are made for possible criminal, civil, or administrative actions. Investigative planning incldes determining the investigative priority, along with the objectives, to ensre that individal tasks are performed efficiently and effectively. Planning incldes the following elements: Identify key isses and problems involved in the matter nder investigation. Address relevant and pertinent laws, rles, and reglations that affect how the investigation mst be condcted. Identify the information or evidence being soght and the investigative leads that mst be followed. 36

8 Chapter 4: Initiating and Condcting Internal Investigations Review case materials, investigative instrctions, and reports of similar investigations. Determine what records are needed, their location, and the time it will take to prepare and process record reqests. Consider the need for any otside spport from other organizations and agencies. Identify anticipated accomplishments or reslts from the investigation. The investigator needs to be able to define the initial investigative steps necessary to resolve the isses nder investigation. This means reviewing what is already known and what is not known. This will lead to determining the initial scope to ensre that all essential leads are followed, inclding a list of those individals who will need to be interviewed. When establishing the scope of the investigation, it is important to keep in mind a nmber of factors: Tip Availability of individals who may have been involved The nmber of people who need to be contacted and possibly interviewed Keep in mind when planning the interviews that one or more of those interviewed will probably need to be re-interviewed as part of following p on what others have reported and what docments have revealed. When the possible wrongdoing occrred and how long it has been going on Whether the isse is an isolated incident or a pattern of improper condct Whether the case was a systemic or procedral deficiency in a nit s operation The volme of records to be reviewed How many investigators need to be assigned to the effort Time frames for completing the investigation Time available for completing the inqiry It is also important to establish why the complainant made the allegations or assertions that predicated the investigation and what he or she expected as reslt of providing the information. Going throgh this initial process will improve the qality, efficiency, and effectiveness of investigation. It will also assist in maintaining focs on the matter nder investigation. Once the investigation begins, it is important to stick with the plan and avoid drifting off on secondary isses. However, the plan shold not be followed so rigidly that it cannot or does not consider new significant information or evidence that might change the complexion of the investigation. Key Steps in Proper Investigative Planning (1) Decide on what is relevant and what is not in the allegations. (2) Take note of factal statements verss hearsay. (3) Determine the objectives of the investigation. (4) Establish a timeline for the investigation. (5) Identify the right people to assist in the investigation. contined 37

9 Condcting Internal Investigations in Health Care Organizations Key Steps in Proper Investigative Planning (contined) (6) Hold an organizing meeting of all involved in the investigation. (7) Review the allegation and crrent knowledge relating to it. (8) Decide on a list of potential interviews. (9) Decide if anyone in management mst be informed of the matter. (10) Obtain relevant docments. (11) Assign interviews and establish the order in which they shold be condcted. (12) Discss gidelines for the investigative report (form, format, process, etc.). (13) Plan for reglar pdate meetings/briefings. Before leaving the sbject of investigative plan, keep in mind that failing to follow throgh on the plan cold case problems. On the other hand, not all plans work ot the way they were intended. Dring the corse of the investigation, new information may develop that will necessitate a change in focs and direction. The investigation may determine that things are not panning ot and that it shold be crtailed or closed down. (See Discontined Investigation Report in Chapter 11, which explains the reason for shtting down the investigation.) The Role of Management One sticky isse may be deciding who in management needs to be broght into the pictre and how mch they are told. This depends on the natre of the allegations nder investigation. It is virtally impossible to condct an investigation in a vacm. The investigation will need some level of management cooperation to make employees available, find docments, and provide backgrond information on workplace practices and employee performance. As a general rle, when management s help, permission, or involvement is necessary, the investigator tells them only what they need to know to jstify the investigatory actions. However, in some cases management may need more information. For example, if the complaint incldes allegations abot improper sbmission of claims for payment, then it may be necessary to involve the manager of the claims department. If that person has been named as the sbject of the investigation, then it may reqire speaking to someone at a higher level. Other examples where management mst be involved at the otset is where there are allegations of behavior that may harm or threaten the safety of people in the work environment or allegations of ongoing legal/reglatory wrongdoing that reqire consltation with Legal Consel. Any comments on the progress of the case shold only be factal as to process the nmber of people interviewed, the nmber of docments reviewed, and estimated date for completion of the investigation. There shold be no sbstantive comments on what has been fond, said, or evidenced. If management insists on a briefing on the progress of the case, it shold be face to face with only those who have a need to know and preferably one on one. The fewer people involved in a briefing, the better. This avoids different versions and interpretations being recalled later. In addition, any briefings on the case cold be broght into qestion as someone attempting to inflence the corse of the investigation. 38

10 Chapter 4: Initiating and Condcting Internal Investigations Tip Care shold be taken with any exchanges of information via memo or on matters related to the investigation. Any written adit trail of comments, sggestions, ideas, or theories may come back to hant yo shold the matter proceed to some sort of legal proceeding. There is a natral tendency and desire to move qickly to resolve the investigation by confronting and/or taking action against those alleged to have engaged in wrongdoing. Understandably, management will want to dispose of the problem qickly, bt this implse mst be balanced against the need for complete and accrate factal evidence. The investigative plan shold allow the investigator to condct the investigation in a timely, efficient, thorogh, and lawfl manner. Unlike wine, investigations do not age well. The complainant may already have provided the same allegations to other interested parties, sch as a litigating attorney, government agency, or the media. The faster the case progresses and the qicker the resoltion of the isse, the better it will be for the organization. However, a speedy resoltion mst not override sond investigative techniqes and decision making. A case may reslt in taking serios action against a wrongdoer. This may reqire following an administrative de process proceeding or referral to a dly athorized law enforcement agency. A messy investigation may adversely affect the ability to enforce an action. Best Practice Don t mddy the water with a poorly exected investigation for those charged with taking adverse action or in those cases where the matter may be referred to law enforcement. Condcting Internal Investigations Condcting sccessfl internal investigations poses many challenges. (1) The organization needs to find the right person(s) who is qalified to condct the investigation. (2) The organization needs to determine whether the complaint reqires participation of Legal Consel, and if so, how mch. In most investigations it is not necessary to involve Legal Consel, except in a consltative role. However, there are sitations where the investigation shold be condcted nder direction of Legal Consel. The respective roles mst be clarified before there is an investigation to avoid confsion and contentions (see Chapter 16). (3) By definition, internal investigators have severe limitations on their athority. Investigators are not law enforcement officers empowered by the legal athority of the state. (4) The laws and policies that protect employees mst be respected. In those organizations that are nionized, the role of the nion and the nion contract will set additional limits on the athority of the investigator. If the person being interviewed is accsed of a wrongfl act or miscondct and is a member of a nion, he or she has the right to the presence of a nion representative. (5) Investigators mst remain objective and not allow personal feelings to interfere with gathering facts and evidence. 39

11 Condcting Internal Investigations in Health Care Organizations (6) Witnesses and complainants can be nreliable, reqiring considerable evidence to verify or nderct their observations and statements. (7) In some cases, the investigation may involve a high-level, inflential person who may be in a position to exert considerable pressre on the organization to abandon the investigation. (8) Sometimes the matter nder investigation is time-sensitive, and the investigator is pshed to complete the investigation qickly. Avoid taking short cts that might ndermine the accracy or completeness of the investigation. (9) Some investigations may be of sch interest and importance as to case senior management and possibly the board to demand briefings on the investigation s progress. This is a tochy sbject becase providing nsbstantiated allegations can create a host of problems for the investigation. Despite the challenges, carefl planning and exection will prodce a fair resoltion to the problem. The giding principles for condcting internal investigations are the following: (1) Need to know. As a general rle, all internal investigations or inqiries shold be condcted nder the need-to-know standard. This means that all discssions regarding the investigation shold be restricted on need to know basis; that is, there shold be no sharing of information regarding the reason for the investigation, the direction or the findings of the investigation with any nathorized parties. In any inqiry the facts will dictate how to address the isse (see Confidentiality as an Underlying Investigation Principle in Chapter 2). (2) Flly debrief complainants at the otset. Unless the complainant leaves an anonymos message, all complainants need to be interviewed either dring the complaint intake or in person to find ot the basis of their allegations, concerns, and complaints. All facts shold be gathered promptly. (3) Be fair and impartial at all times. The process of condcting the investigation mst be fair and impartial review of all relevant facts. (4) Exercise discretion. It is very important for the investigator to be discreet in gathering pertinent facts. In a confined work environment it is easy to telegraph information abot the investigation that cold easily ndermine its effectiveness. (5) Stay focsed. Investigators mst never lose sight of the prpose and objective of the investigation. This means staying focsed on factors relating to the complaint and not distracted by extraneos information. (6) Remain flexible. While the investigator mst stay focsed on the prpose and objectives of the investigation, he or she shold not be inflexible with regard to changing fact patterns or conditions. Under certain circmstances deviating from the gidelines and investigative plan may be necessary. Remaining too narrowly focsed may reslt in missing even more significant isses than those that triggered the original investigation. In many cases the investigation may identify problems related to the original complaint or allegation. (7) Be comprehensive. For most investigations, there is one chance and, as sch, it is important that everything be done right the first time. The investigation mst be comprehensive enogh to answer all the qestions raised in the predication, as well as sfficient to identify any pervasive or systematic problem that may have cased the problem. 40

12 Chapter 4: Initiating and Condcting Internal Investigations (8) Avoid . Never discss or refer to any active investigation in an message. Never attempt to hide an investigation message. (9) Avoid sing original docments. Work with copies, not original docments. (10) Controlling and tracking information. All cases shold be stamped, logged, and nmbered as part of records management. (11) Chain of cstody. All evidence obtained dring an investigation mst be tracked so that it is never otside of the control of the investigation. This is referred to as maintaining the chain of cstody. Failre to maintain this chain of cstody may reslt in disallowance of the evidence in a formal adjdicative process. (12) Inclde management s view. It is important to inclde management s views as part of the final report and not rely solely pon representations of staff. (13) Prevent retaliation. One of the worst otcomes of an investigation is retaliation or retribtion against the complainant or witnesses. It also creates serios legal liability nder varios federal laws (see Non-Retaliation for Reporting Wrongdoing (Policy Template 3)). 41

13 Condcting Internal Investigations in Health Care Organizations Condcting Internal Investigations in Health Care Organizations: A Practical Gide on How to Resolve Allegations of Wrongdoing Richard P. Ksserow Chief Exective Officer Strategic Management Systems, Inc. From The AIS Bookshelf: Chapter 4: Initiating and Condcting Internal Investigations This PDF incldes a 11-page chapter on Initiating and Condcting Internal Investigations from the AIS book Condcting Internal Investigations in Health Care Organizations: A Practical Gide on How to Resolve Allegations of Wrongdoing Like what yo ve seen in this chapter? Order the complete Condcting Internal Investigations in Health Care Organizations today! Send my copy of the Condcting Internal Investigations in Health Care Organizations: A Yes! Practical Gide on How to Resolve Allegations of Wrongdoing for immediate delivery. ($275) Please complete the blanks below or attach yor bsiness card. (UPS does not deliver to P.O. boxes. Please inclde yor street address.) Name Title Organization Address City/State/Zip BCII/11WEBK Order Form Three Convenient Ways to Pay DC residents add 6% sales tax. Charge my credit card $275 VISA MasterCard AmEx Card # Exp. Date Charges will appear as Atlantic Information Services, Inc. Check enclosed for $275 Make payable to Atlantic Information Services, Inc. Prchase Order # * Signatre * Phone # * Reqired for credit card and prchase orders 100% Satisfaction Garantee Order Condcting Internal Investigations in Health Care Organizations: A Practical Gide on How to Resolve Allegations of Wrongdoing for a 30-day risk-free inspection and test for yorself the vale of this information resorce. If within 30 days yo re not 100% satisfied, yo may retrn it to AIS and receive a fll, prompt refnd. Refnds will not be made once the seal on the CD package has been broken. Please review yor copy of the print version prior to breaking the seal. Three Easy Ways to Order 1. Call toll-free Mail this completed form to: Atlantic Information Services, Inc th Street, NW, Site 300 Washington, DC Vist the marketplace at Atlantic Information Services, Inc th Street, NW Site 300 Washington, DC