Establish Best Practices for Conducting Internal Investigations
Favorable outcomes require a plan for gathering information, conducting interviews, and bringing in legal counsel.
By Erica Lindsay, PharmD, MBA, Esq.
To maintain effective compliance, healthcare entities may have to conduct internal investigations. To ensure efficiency in the process and consistency in the results, you’ll need a solid and enforceable company policy for compliance. Let’s review the process of an internal investigation from start to finish, and consider best practices you might incorporate into your organization’s plan.
Evaluate the Need for an Investigation
The first step is to establish a complaint review policy. This will bring consistency to the way in which complaints are handled in your organization.
An internal investigation usually starts when an employee makes a verbal or written complaint to management or the compliance department, or irregular activity is discovered. Complaints should be reviewed and prioritized based on severity, complexity, and resources available.
After reviewing the complaint, if it is determined that a policy breach or unlawful behavior has occurred, conduct a timely investigation. Acting quickly to secure information and evidence will improve the results of the investigation and the facility’s credibility with law enforcement and government agencies.
If the complaint is unfounded or frivolous, the investigation may be closed.
Initiating an Investigation
If an investigation is determined to be appropriate, there are key questions that need to be addressed, including:
- What is the issue (e.g., unlawful conduct, noncompliance, abnormal activity)?
- Who should conduct the investigation (e.g., legal, compliance, third party, outside department, management)? There should be at least two people present to conduct interviews, one being the interviewer.
- Where should the meetings take place (e.g., conference room, off site)?
- Who should be interviewed? Identify all persons involved, including witnesses.
- How should the investigation be conducted (e.g., in person [preferred], phone, conference)?
The Society for Human Resource Management recommends in “How to Conduct a Workplace Investigation,” the following seven steps:
1 Ensure Confidentiality
The employee disclosing the information should be protected; however, there may be extreme circumstances where an individual’s identity may be revealed during the investigation. The investigator should aim to protect the identity of the discloser as much as possible.
2 Provide Interim Protection
If unlawful behavior is occurring, discuss with human resources the need to immediately remove the employee from the premises to prevent further criminal activity and to reduce the risk to the organization. When the investigation is completed, and the findings are confirmed, the employee, if cleared, can return to work, or other arrangements may be made through human resources.
3 Organize and Collect Information
Selecting a neutral investigator is key to a successful investigation. Important factors weigh into the decision of who in your organization should be chosen. Most important, the investigator:
- Should not have a personal relationship with the involved parties.
- Should be able to build a rapport and be perceived as non-biased.
- Should be open minded and make decisions based on presented facts — not jump to conclusions prior to completing the investigation.
- Should know when to involve legal counsel.
Legal counsel should always be notified of an issue. They can help to determine if they should conduct the investigation, if they should delegate someone to conduct the investigation, etc. If legal counsel conducts or delegates the investigation, there are legal protections — including attorney/client privilege and work-product immunity — that can be implemented to protect the entity.
Your healthcare organization should create a customized investigation plan containing an outline of the issue, a witness list, and sources for information and evidence. The interviewer should follow a documentation process that’s consistent throughout the organization. Goals of the interviewers include:
- Contacting all witnesses;
- Providing details regarding the complaint to the accused; and
- Allowing the accused the opportunity to respond before issuing discipline.
The interviewer should create questions prior to the interview based on the type of information required. The Association of International Certified Professional Accountants (AICPA) explains in “Conducting Effective Interviews” (Forensic and Valuation Services Section), the different types of interview questions:
Informational questions are non-confrontational, designed to gather information, and should be non-biased.
Open-ended questions are best (e.g., who, what, when, where, how?). Open-ended questions require the responder to elaborate, which can uncover many facts from the incident.
Closed-ended questions may not be as revealing. They usually require a “yes” or “no” answer, and can be used to confirm previously answered facts.
Leading questions provide an answer as part of the question. These types of questions are used when the facts are already known, and are used for confirmation.
Double-negative questions should be avoided because they can be confusing and lead to inaccurate information (e.g., the results are not inconclusive).
Attitude questions are when the interviewer interjects their opinion, which can be interpreted as biased, into the question.
Admission-seeking questions are when the interviewer uses direct accusations in a statement as a definitive fact, not as a question. Do not use this approach unless there is actual evidence of the wrongdoing (e.g., a recording of the drug diversion from the pharmacy).
4 Conduct Interviews
Reserve a conference or meeting room to conduct interviews. It’s best to have at least two interviewers present: one to ask questions, the other to take notes. This allows for multiple witnesses, which is especially important if the accused admits to wrongdoing. All interviews should be documented in writing, including an admission to wrongdoing. Audio or video recording of the interview is an option; however, it requires reliable equipment and chain of custody for the recording to ensure it’s not tampered with.
Spread out the interviews with time in between and have interviewees leave promptly when finished. This will help to ensure interviewees leaving the meeting room do not have an opportunity to interact with other interviewees entering the meeting room. Consider holding the interviews on the same day, if possible. The interview should be held in a logical order and should begin as soon as possible to avoid prejudice and evidence or witness loss. For example, the order of an interview process may be:
Interview the person who reported the incident. This will allow the interviewer to identify the issue, clarify facts, identify and gather evidence, and identify additional witnesses.
Interview the accused. When interviewing the accused, the objective is to allow them to respond to allegations and to obtain their version of the events. Do not interrogate the accused; allow them to discuss the facts in an open environment. The accused may respond in either oral or written form and may also have legal counsel present. If legal counsel is present, establish the role of the attorney before the interview.
Interview all witnesses until complete. If an additional day is needed, immediately schedule the interviews for the next day.
Tip: Consider starting the interview process either on a Monday or Tuesday. If interviews start on Friday, the investigation may lose momentum by waiting until Monday to schedule an additional day.
Between each interview, review and complete notes and prepare for the next interview. This allows questions to evolve so the interviewer can capture the most information.
When all witnesses are interviewed, review all notes and evidence. If a witness needs to be questioned again for clarification, conduct the subsequent interview immediately.
5 Collect all information and analyze
Prepare a report for upper management with a final resolution.
Determine an outcome resulting from the evidence. Determine disciplinary actions, warnings, or memos with the assistance of human resources. Hold separate meetings with the reporter and the accuser, providing them with the results of the investigation.
7 Close and Document
Lastly, you must:
- Close the investigation;
- Prepare an investigation report; and
- Present it to the appropriate personnel.
10 Investigation Errors to Avoid
Ten common investigation mistakes, according to the Society for Human Resource Management (“How to Conduct a Workplace Investigation”) are:
1. Failing to plan (you should already have an investigation procedure in place)
2. Ignoring complaints
3. Delaying investigations
4. Losing objectivity
5. Being distracted during interviews
6. Using overly aggressive interview tactics
7. Not conducting a thorough investigation
8. Failing to reach a conclusion
9. Failing to create a written report
10. Failing to follow up with those involved
Erica Lindsay, PharmD, MBA, Esq., is a healthcare attorney practicing in Chicago at Lindsay Law, Chicago. She specializes in contract and qui tam cases. Lindsay is an instructor for the University of Wyoming School of Pharmacy and has recently published Protect and Empower: The Career Survival Guide for Healthcare Professionals. She can be contacted at firstname.lastname@example.org.
Society for Human Resource Management, “How to Conduct a Workplace Investigation:” www.shrm.org/hr-today/news/hr-magazine/pages/1214-workplace-investigations.aspx
Conducting Effective Interviews: AICPA – Forensic and Valuation Services Section