Articles on Compliance Strategies

Featured Health Business Daily Story March 11, 2010

Proven Strategies That Can Be Used to Question Employees Suspected of Wrongdoing   

Reprinted from REPORT ON MEDICARE COMPLIANCE, the nation's leading source of news and strategic information on false claims, overpayments, compliance programs, billing errors and other Medicare compliance issues.

By Nina Youngstrom, Managing Editor (nyoungstrom@aishealth.com)

When investigating potential wrongdoing at Baylor Health Care System — from kickbacks to medical-record snooping to theft — Senior Corporate Compliance Consultant Randall Brown usually knows the answers to the questions he asks employee-suspects. It’s an investigative technique that Brown, who runs Baylor’s internal investigations, has found effective during subject interviews, which are a major part of compliance investigations.

Before interviewing an employee suspected of wrongdoing, Brown researches the topic (e.g., billing aberrations involving a particular physician whose volume has spiked). Then he walks into the interview and explains he is with corporate compliance and handles hotline calls and investigations. Keeping the tone low-key, Brown asks routine questions, such as how long the employee has worked at Baylor, and emphasizes the importance of being truthful.

When it’s time to address the wrongdoing directly, Brown starts by asking the questions he knows the answers to. “If you interview someone, ask people questions as if you don’t know the answer,” he says. If employees are guilty or have knowledge of wrongdoing, Brown says, “they rarely tell the truth the first time they’re asked.” So Brown just casually gets the employee to repeat the lie, saying something like, “Let me understand this….” Then he hits employees with clashing evidence, and they usually back down. “If they are asked repeatedly, they usually will tell [the truth] — especially if I have information that contradicts what they are telling me,” he says.

One Baylor employee steadfastly denied she was stealing funds even though there was documentation showing she collected money from a patient but never entered it into the electronic system. Brown showed her the evidence. “I sit back and wait,” Brown says. “It’s beneficial for there to be as much silence as necessary, and sit back and wait for there to be an answer.”

Social networking sites have proven valuable in identifying people who may be violating company rules or laws and regulations. “For example, if you suspect that an accounts payable clerk with an annual salary of $35,000 is processing checks for a fraudulent vendor and his or her FaceBook page states they just purchased a vacation home in the Hamptons, that may be a red flag,” Brown says.

He notes that social networking sites may also help compliance investigators establish a profile of a person whose conduct may be under suspicion (e.g., a member of the “I hate my job” group on FaceBook). “It’s always interesting to watch a subject’s reaction when I pull out a copy of their FaceBook or MySpace page and begin asking them questions,” Brown says.

But it’s essential to keep an open mind about subjects, no matter now incriminating the evidence may appear, Brown says. That lesson was reinforced in a recent investigation of an employee. All signs pointed to her as the thief of petty cash. But it turns out she was just incompetent. “If we hadn’t remained open to that possibility, we would have taken her down the path of being guilty,” Brown says. The actual guilty party — a long-time Baylor employee — was ultimately identified after he quit with no notice as soon as Brown started questioning employees about the theft.

Washington, D.C., attorney John Kelly, former assistant chief for health care fraud at the Department of Justice criminal division, takes a slightly different approach to questioning subjects during an internal compliance investigation. “You want to be prepared and look for ‘gotcha’ moments by asking questions and knowing the answers, but you also want to learn more about the extent of the issue and understand who else may be involved and what other information may be out there,” he says, and that requires asking questions to which you don’t know the answer. “When you do an interview for an internal investigation, you are trying to assess culpability as well as the breadth and depth of the potential misconduct,” says Kelly, with Fulbright & Jaworski.

Probably the best evidence with which to disarm suspicious employees during interviews is documentation, because it doesn’t lie, Kelly says. For example, “it’s amazing how much information you can find during an e-mail review,” he says. “People will share all kinds of things and not think about how it could end up before government agents or an internal review and how it will be interpreted.” It’s hard for a subject to argue when caught verbally red-handed (e.g., violating the code of conduct, accepting vendor kickbacks). “Information that’s captured electronically — e-mails, voice mails, text messages — is crucial to have, depending on the nature of the investigation” he says.

When interviewing employees suspected of wrongdoing, their non-verbal behavior may speak volumes, says former HHS Inspector General Richard Kusserow, who is now the President and CEO of Strategic Management in Alexandria, Va. “Whereas verbal answers to questions can be well thought-out and calculated, most non-verbal behavior is involuntary and unintended. This makes the non-verbal behavior more reliable,” he says

Compliance investigators should recognize and analyze non-verbal behavior, Kusserow says. It can be found in employees’ pitch, stress, tone, and pauses in answering questions. “There are a host of indicators of deception where the person feels intimidated, resentful, uncomfortable, or not telling the truth,” he says. “They manifest themselves in changes in attitude, grooming gestures, eye or body movement, toying with objects, etc.”

Kusserow recommends looking for overall patterns of behavior rather than any single observation. “In particular, look for behavior changes when asking sensitive questions,” he says. If the employee reacts to a specific question, repeat the question later and observe the response. But don’t confront the person about their behavior patterns, says Kusserow. “It is your private store of information.”

People who are hiding things tend to answer questions more slowly, Kusserow notes. “The deceptive person often asks for clarification of questions or asks that they be repeated to permit time for them to formulate an answer. Recollections of deceptive people are either too exact or very selective,” he contends.

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