Retaliation for Doing the Right Thing
“Ensuring Employee Rights”
by Sean Weiss, Partner & VP of Compliance
I spent 14-days straight working and traveling between the Pacific Rim, Texas and Michigan providing education regarding compliance to some amazing groups of health care professionals. The interesting thing they all had in common was the majority of the attendees at these conferences had either no compliance plan or a significant lack of an effective compliance plan within their organization. I have written on my blog many times about the importance of creating a culture of compliance and initiating effective P&Ps to demonstrate a good-faith effort to comply with not only the federal payors but also with private payors. More than that, compliance plans, as I said, go a long way during an investigation or when the DOJ is involved in determining whether to prosecute or allow a plea agreement.
I get the fact that compliance is another expense for an organization and something that most do not want to contend with because reimbursements these days are poor and the difficulty with getting paid, paid in a timely manner, and paid accurately is so stressful. However, providers are held to very strict standards with regard to complying with participation agreements, medical coverage or local coverage determination guidelines and the payors are not. However, two wrongs do not make a right and more importantly there are laws, acts, guidelines, and statutes that either encourage or require us to have a culture of compliance that leads to effective compliance programs. Take for example as outlined in §8B2.1.
(a) To have an effective compliance and ethics program, for purposes of subsection (f) of §8C2.5 (Culpability Score) and subsection (b)(1) of §8D1.4 (Recommended Conditions of Probation – Organizations), an organization shall—
(1) exercise due diligence to prevent and detect criminal conduct; and
(2) otherwise promote an organizational culture that encourages ethical conduct and a commitment to compliance with the law.
Such compliance and ethics program shall be reasonably designed, implemented, and enforced so that the program is generally effective in preventing and detecting criminal conduct. The failure to prevent or detect the instant offense does not necessarily mean that the program is not generally effective in preventing and detecting criminal conduct.
(b) Due diligence and the promotion of an organizational culture that encourages ethical conduct and a commitment to compliance with the law within the meaning of subsection (a) minimally require the following:
(1) The organization shall establish standards and procedures to prevent and detect criminal conduct.
(2) (A) The organization’s governing authority shall be knowledgeable about the content and operation of the compliance and ethics program and shall exercise reasonable oversight with respect to the implementation and effectiveness of the compliance and ethics program.
(B) High-level personnel of the organization shall ensure that the organization has an effective compliance and ethics program, as described in this guideline. Specific individual(s) within high-level personnel shall be assigned overall responsibility for the compliance and ethics program.
(C) Specific individual(s) within the organization shall be delegated day-to-day operational responsibility for the compliance and ethics program. Individual(s) with operational responsibility shall report periodically to high-level personnel and, as appropriate, to the governing authority, or an appropriate subgroup of the governing authority, on the effectiveness of the compliance and ethics program. To carry out such operational responsibility, such individual(s) shall be given adequate resources, appropriate authority, and direct access to the governing authority or an appropriate subgroup of the governing authority.
(3) The organization shall use reasonable efforts not to include within the substantial authority personnel of the organization any individual whom the organization knew, or should have known through the exercise of due diligence, has engaged in illegal activities or other conduct inconsistent with an effective compliance and ethics program.
(4) (A) The organization shall take reasonable steps to communicate periodically and in a practical manner its standards and procedures, and other aspects of the compliance and ethics program, to the individuals referred to in subparagraph (B) by conducting effective training programs and otherwise disseminating information appropriate to such individuals’ respective roles and responsibilities.
Obviously, there are so many laws, acts, statutes and guidelines that can be addressed and/or explored here and, I am sure in future blogs where I am addressing various policies, we will cover those but for the purposes of today’s blog post, the above I believe paints a reasonably clear picture for why an effective compliance program is so crucial.
If we are doing all of the above, then it should be unspoken that when someone raises a concern or concerns over how something is being done; whether or not at the end of the day their concern(s) are founded or not; retaliation for trying to do the right thing should never occur. One of top reasons for relators filing a whistleblower claim (qui Tam Act) against a provider (physician, group, hospital, health system, etc.) is because their feeling of being unjustly retaliated against or made to feel threatened by trying to, in their mind, do the right thing.
I have been asked numerous times to provide assistance or guidance on structuring a non-retaliation policy so, I thought I would provide a sample policy to help you get started. This is a generic template and it should not be implemented as is since no two practices are alike nor will you do all of the things outlined in this policy. Please take the time to manipulate the sample policy to fit specifically with what your practice or organization will do in these situations.
Legal Disclaimer: The following policy is a sample/template and not intended to be implemented as is. This policy does not provide legal guidance or opinion(s) and is not a substitute for legal advice. User agrees to the above and accepts full responsibility for use of or implementation of this policy either in its current form or if it is manipulated. DoctorsManagement, LLC assumes no liability for use of this template.
Policy on Non-Retaliation
OUR PRACTICE strictly prohibits retaliation against any employee(s) of the practice/organization related to the reporting in “good faith” of what the employee(s) believes to be unethical or potentially unlawful activity, or for participating in an investigation or proceeding related to such accusations. Our Practice/Organization considers reporting, inquiring, or participating to be protected activities in which all employees of the Practice/Organization may freely engage.
Our Practice/Organization is committed to operating with integrity and expects all who are employed with us to act ethically, legally and with integrity. This Policy is meant to promote a work environment that encourages employees to report any activity they believe in good faith to be unethical or potentially unlawful.
Retaliation: an action performed directly or through others that its intent is to deter a person(s) from engaging in a protected activity or is done in retribution for engaging in a protected activity.
Wrongful or unlawful activity: activity of the organization employee(s) that violates the law, policy, or professional standards of conduct, including the laws, policies and standards referenced in Section I below.
Materially adverse: sufficiently harmful to deter a reasonable person from engaging in protected activities.
“Good faith”: Acting with integrity to ensure compliance regarding federal and state laws, acts, regulations or guidelines
Protected activities: include reporting or inquiring, in “good faith” about suspected unethical or potentially unlawful activity; assisting others in making such a report; or participating in an investigation or proceeding related to potentially unethical or unlawful activity(s).
I. Reporting and Reporting Obligation(s)
Our Practice/Organization encourages employees to report all information regarding any activity they believe to be unethical or potentially unlawful, including activities that may constitute:
- Discrimination, harassment, or sexual misconduct;
- Coding and/or billing constituting fraud, waste or abuse;
- Unethical business conduct (see Standards for Business Conduct);
- Academic misconduct or Research misconduct;
- Fraud, waste, abuse in connection with a federal contract or grant;
- Other violations of local, state, or federal laws or regulations.
- The above list is not all-inclusive and only functions as examples that are and should be reported.
As noted, applicable law and Policies mandate the reporting of certain potentially unlawful activity(s). Our Practice/Organization is committed to encouraging timely disclosure(s) of concerns and prohibits retaliation against any employee(s) who, in “good faith” report concerns.
II. Protection from Retaliation/Retribution
Employees of the organization are prohibited from engaging in retaliation. Examples of materially adverse actions that could constitute retaliation include, but are not limited to:
- Reduction of salary;
- Negative performance review;
- Impacting work assignments, vacation, or promotion or advancement opportunities;
- Employment termination;
- Engaging in harassing conduct of any kind; or
- Threats to engage in any of the actions listed above.
- No employee(s) may be retaliated against for refusing to carry out a request or demand requiring the employee(s) to engage in unethical or potentially unlawful activity(s).
III. Reporting and Investigations
Employees may report evidence of suspected unethical or potentially unlawful activity by contacting one or more of the following individuals or offices:
- Immediate supervisor;
- Human Resources;
- The Compliance Officer
1. Where the suspected unethical or potentially unlawful activity (or retaliation) occurred outside of the context of an activity, or where the respondent is not employed by our practice/organization, we typically will not conduct an investigation. However, in such situations we may still address the situation and provide resources to affected individuals.
2. We will consider all employee rights to freedom of speech/expression when investigating reports of unethical or potentially unlawful activity(s) (or reports of retaliation) that involve an individual’s statements.
IV. Protection Related to Federal Contracts or Grants
Federal law protects employees working on federal contracts or grants from reprisal related to the reporting of fraud, waste, or abuse. Research misconduct regulations adopted by federal agencies funding sponsored research similarly require our practice/organization to protect the positions and reputations of employees who report misconduct in “good faith” or participate in “good faith” in proceedings or hearings.
Consequences for Violation of this Policy
Individuals engaging in retaliation as defined above will be subject to discipline under current policies and procedures up to and including termination of employment. Retaliatory actions taken in violation of law are also subject to the individual found to have engaged in retaliation to legal liability.
Related Information/Laws and Regulations
10 U.S.C. Section 2409
41 U.S.C. Section 4712
Federal Acquisition Regulation Subpart 3.908
What to do next…
- If you need help with an audit appeal or regulatory compliance concern, contact us at (800) 635-4040 or via email at email@example.com.
- Read more about our: Total Compliance Solution
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Experienced compliance professionals. Our compliance services are structured by a chief compliance officer and supported by a team that includes physicians, attorneys and a team of experienced auditors. The team has many decades of combined experience helping protect the interests of physicians and the organizations they serve.
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