Beyond the Allegation · GlaxoSmithKline settles health care fraud case for $3 billion 17 Accused...

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Beyond the Allegation:A Guide for Conducting Internal Investigations

Barbara Naimark, Director, National Special Investigations Unit & FWA Training

National Compliance, Ethics & Integrity Office

2 | © 2011 Kaiser Foundation Health Plan, Inc. October 18, 2012

Objectives

How to develop a consistent investigation process.

Tips on writing reports, conducting interviews, and maintaining documentation.

Emerging trends in fraud, waste, and abuse investigations.


About Kaiser Permanente

Nation’s largest not-for-profit health plan

– 9 million members

Integrated health care delivery system

37 hospitals

611 medical offices

16,658 physicians

172,997 employees

365 outpatient pharmacies

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In the News

Health Care Fraud

Texas Nurse Denied Bail in Record $375M Medicare Fraud

– Home health fraud

Health Care Fraudster to Pay $1.3M

– Ambulance transport scheme

Feds Raid Hospital, Clinics for Patient Records in Fraud Investigation

– Payment to personal care home owners to recruit residents

Pharmaceutical / Diversion

GlaxoSmithKline settles health care fraud case for $3 billion

17 Accused of Medicare Fraud– Physician and pharmacist bilking

Medicare/Medicaid on elaborate prescription drug fraud

Time Magazine, U.S. Edition, Battleground

– Army Times reports that prescription drug abuse among troops is 3 times higher than among civilians



Estimated annual $ by fraud type

•Measuring fraud is an elusive target. No single national agency gathers omnibus fraud statistics.

•Companies and diverse state and federal agencies each gather fraud data related to their own missions.

• Independent watchdogs, academics, industry groups and other organizations also conduct research on a variety of fraud topics.

*Coalition Against Insurance Fraud


The term fraud has come to encompass many forms of misconduct*.

*National Association of Certified Fraud Examiners 2012 - Report to the Nations

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What is fraud?


Although the legal definition of fraud is very specific, for most people — anti-fraud professionals, regulators, the media, and the general public alike —the common usage is much broader and generally covers any attempt to deceive another party to gain a benefit.

Health care fraud, identity theft, padded expense reports, mortgage fraud, theft of inventory by employees, manipulated financial statements, insider trading, Ponzi schemes — the range of possible fraud schemes is large, but at their core, all of these acts involve a violation of trust.

It is this violation, perhaps even more than the resulting financial loss, that makes such crimes so harmful*.

*National Association of Certified Fraud Examiners 2012 – Report to the Nations


What is an investigation?

Assess the scope and nature of a potential problem,

Determine appropriate corrective action/s,

Meet legal and compliance obligations, and

Prepare to defend the organization’s actions, if challenged later.

An investigation is the timely collection and documentation of factual data in order to:

The purpose, scope, and context of investigations may vary, but all investigations require a similar skill set.

Investigation Objectives


Thorough

Timely

Objective (full and fair – no rush to judgment)

Meet legal and compliance obligations to investigate

Avoid creating new claims or issues

If litigation or government action follows, witnesses, documents, and physical evidence will objectively support action/s taken

Maintain confidentiality to the extent practicable

Get decision makers the facts they need to make the right decisions

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Full and Fair Investigations


Declare any conflict that might be raised by others about you conducting the investigation, such as, you went to high school with the reported party.

If you question if you are the right person to investigate a matter, that’s a red flag to explore further.

Maintain an open mind and professional demeanor during the entire investigation.

Understanding the allegation and investigation process

Who

What

When

Where

Why

HoW


The Six Ws


WHO? •Who is the subject of the investigation?•Who are the witnesses? Reporting Party or complainant?•Who is the victim? Do we have a victim? Is the victim an entity or a person?

WHAT? •What is alleged? •Does the investigation uncover new allegations?•What policy, procedure, rule, regulation, or law is violated?•What documents might be involved?•What happened?

WHEN? •When did this allegation occur?•When did subject / witnesses / entity obtain a particular document or item?

•When did a policy, procedure, rule, etc. become effective?•When did you as an investigator conduct interviews or obtain documents?

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Six Ws (Cont)


•WHERE? •Where did this allegation occur?•Where are the documents used to perpetrate the violation?•Where is the subject or witness/es located?•Where is evidence held?•Where were interviews held?

•WHY? •Why did the subject do what they did? (Motive)•Why is the reporting party making the complaint?

•HoW? •How did the violation or problem occur?• Is there documentation to support how this activity occurred?•Are there gaps in current processes?

Initiating an Investigation Plan What are the allegations?

– Clear allegation?

– Does the investigation lead to other allegations?

What policies / procedures have been violated?

What regulations / laws may have been violated?

Who else should be on an investigative team?– Auditors

– Information Technology / Computer Forensics

– Legal

– Other Compliance

Are others already conducting an investigation? Previous investigation?


Other considerations? What is the proper role of management in the investigation or

interviews?

What are the elements needed to prove the alleged offense or performance issue?

Who are potentially relevant witnesses?

What is the appropriate order of witnesses?

Who should conduct interviews?

When do you interview the subject?

What evidence is available or needed?

Are there criminal implications?

Are there reporting requirements to agencies?

Are there HIPAA privacy implications?15 | © 2011 Kaiser Foundation Health Plan, Inc. October 18, 2012

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Items to Consider Reviewing

Policies and procedures

Conduct rules

Performance evaluations

Prior discipline

Attendance and payroll

Invoices, receipts, expense claims (business records)

Access logs

Purchase data

Other data

Data mining

Medical records

Email

Other electronic records


Regulatory Reporting Requirements

Considerations for Health Plans, Medical Facilities, Insurers

•Medicare

•Medicare Part D

•Medicare Part C (Medicare Advantage)

•Medicaid

•Government Employee Benefit Plans

•HIPAA and State Privacy Reporting


HIPAA and state laws require that patient identifiable medical records or protected health information be maintained confidentially. There are limited exceptions for disclosure in certain types of investigations.

Conducting Interviews

Preparation– Review all pertinent documentation and records pertaining to allegations

Who are you interviewing– Victim, witness, subject/suspect

Patience– Allow a enough time

Persistence– Questions to obtain full and consistent statement

Professionalism– Neutral fact gather

– Full and fair investigation


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Interview vs. Interrogation

Interview– The purpose of an interview is to question an individual who is believed to have

information of interest concerning a particular matter.

Interrogation– The purpose of an interrogation is to question an individual, that for a variety of

reasons, may be either withholding information or being untruthful concerning a particular matter.


Most compliance investigations are going to be an interview and may have elements of an interrogation……

Interview vs. Interrogation (cont)

Interview

Non-confrontational

Two-way conversation

Low stress

Generally used for witnesses and victim interviews

Interrogation Confrontational

High stress

One way conversation

High level of planning

Admissions and confessions are goal

Extracting information from an individual who does not want to provide

Generally used for non-cooperative subjects


Witness Interview vs. Subject Interview

Witness Interview– Information gathering

– Non-accusatory

– Tell the story

Subject Interview– Possibly turns adversarial

– Structured

– Privacy critical


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Interview Planning

Determine goal of the interview

Thorough knowledge of case facts– Review case file

– Results of other interviews

– Evidence

Knowledge of policy, procedures, and regulations

Knowledge of the interview subject (witness, victim, and subject)– Talk to anyone who has previously interviewed the subject

– Personality: emotional vs non-emotional

– What is important to this person


Preparation of Questions

Prepare an OUTLINE.

DO NOT have a script of questions.

Be prepared to have follow-up questions.

Bring necessary evidence or documentation to show witness or subjects as needed.


Interview Environment

Limit number of people in the room.

Create an atmosphere that….– Breaks down barriers

– Takes away defenses

– Provides you with a psychological advantage

Interview location.– Privacy is extremely important

– Avoid distractions Other people, windows, pictures/plaques, telephones, computers, smart phones


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Pre-Interview Advisements

Check your own company policy and legal departments on confidentiality advisements.

National Labor Relations Board has recent rulings on confidentiality advisements related to represented employees.

Represented employees are generally allowed union representation if they are the subject of the investigation and the investigation could lead to disciplinary action.


Build Rapport

RAPPORT: A condition of mutual trust and understandingBe human, not a investigator robot

Put the interviewee at ease

Show compassion

Become an ally

Establish authority

Balance roles


Putting the Interviewee at Ease

Comment on a topic of apparent interest.

Establish confidence and friendliness by engaging in topics such as the weather, sports, or current event.

Display pleasant emotional responses and avoid distasteful expressions.

Appear interested and sympathetic to the subject’s concerns.

Never begin an interview until you feel some degree of rapport has been established.

Do not reveal signs of your own personal beliefs; they may contradict the interviewee’s beliefs.

Note: Can use employment history, training background, department processes, etc. in this rapport process.


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How do you know what you know?


When interviewing, be sure to explore how the interviewee knows what they know.

Do they have first hand knowledge or is it something they overheard or something someone else told them?

Indicators of Truthful Attitudes

Composed

Concerned

Cooperative

Direct and spontaneous

Open

Sincere

Unyielding

More gaze time at interviewer


Indicators of Deceptive Attitudes

Anxious

Overly polite

Defensive

Evasive

Complaining

Guarded

Defeated

Quiet


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Pay Attention

Truthful people recall

Deceptive people create

31 | © 2011 Kaiser Foundation Health Plan, Inc.October 18, 2012

Most people are uncomfortable with lying. Find something they can admit to and build on that admission.

Verbal vs. Non-Verbal Behavior

Verbal Deceptive people repeat questions as

delay tactic.

Deceptive people may have memory failure or have too good a memory.

Be careful/listen for qualifying statements.

– “As far as I can remember…”

– “To the best of my knowledge…”

Non-Verbal Behavior Physical movements, gestures,

posture, and facial expressions.

Non-verbal communication designates all those human responses that were not described as overly manifested in words.

Non-verbal is often more accurate and reliable communication.

Behavior symptoms become more dramatic as anxiety increases.


Report Writing - Quality

A quality report is an effective report, and to be effective it must be:– Complete

– Clear

– Concise

– Accurate


The best investigation is only as good as the report written about it.

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Tell the Story


Tell the story of what happened. Create a simple but clear mental picture so the reader can understand what happened.

Everyone relies on what you have written in your report.

EYA(Explain Your Acronyms)

Chronological Order

Chronological order is order by time. Your report should tell what happened in the order that the events took place.

Get all the facts and then list them in the order in which they happened. It is much easier to understand what happened if the details are written in chronological order, even if the people involved do not tell you the information in chronological order.


Grammar, Spelling, and Punctuation

Use the tools available in word processing programs

Avoid wordiness – keep it simple– Use simple words

– Use active voice

– Avoid wordy phrases

– Avoid redundancy

36 | © 2011 Kaiser Foundation Health Plan, Inc. .October 18, 2012

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Report Facts, Not Opinions

Report facts, not your opinions:– Opinion: Jack Sparrow is a crook and a thief.

– Fact: Jack Sparrow committed an vendor invoice fraud that resulted in an $8.2M loss.

Be sure to cite the source of your information:– The suspect entered the hospital storeroom at 2311 hours. (How do you

know? Were you there?)

– Jack Sparrow said he entered the hospital storeroom at approximately 11:15 p.m.


Investigative Report

Don’t cut corners!– Do you need more information?

– Have you forgotten anything?

– Are their templates or “go-bys?”

Before finalizing the report:– Review it for reflections of your own

biases or assumptions.

– Review it to remove typos and grammar problems that can impact your professionalism and credibility.


Report Format

Synopsis– Brief: Just enough so the reader has an idea of what will be in the report.

“On July 1, 2010, John Smith, violated ABC Policy 1.2 by failing to…….

Allegation(s)

Policy / Procedure Review

Investigative Steps

Summary of Findings

Recommendations / Corrective Action Plans– Usually a recommendation to submit to those who have decision-making

authority


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Questions


[email protected](626) 381-5809

Beyond the Allegation · GlaxoSmithKline settles health care fraud case for $3 billion 17 Accused...

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