A carelessly conducted investigation can lead to avoidable mistakes that in many cases compromise the investigation and in some instances aggravate circumstances. Although most Compliance Officers have a responsibility to conduct investigations as a result of “hotline reports” or for other reasons, the fact is that conducting a full investigation of potential violations of law, regulation, or policies is infrequent. Most issues from the hotline or other sources require only limited work and can be resolved within a day or two. However, all organizations will from time to time be confronted with a problem that must be resolved by some sort of fact gathering. The larger the organization, the more frequently this will happen and for many of the larger organizations, it is a frequent occurrence. The cases requiring investigation generally arise from allegations or complaints that someone has committed a wrongdoing. When this occurs, someone is tasked with conducting an investigation to establish the facts related to the allegation. In most cases, the predicating evidence for an investigation suggests violations of policies, procedures, rules, standards, etc. On relatively rare occasions, it may suggest potential violation of law, or potential civil liability. Unfortunately, it is not uncommon for someone to fumble an investigation. The most common mistakes made in conducting an internal investigation include:
- Mishandling hotline callers or other complainants.
- Delaying the initiation of an investigation.
- Failing to plan the investigation to focus on specific objectives.
- Not using properly trained people to conduct the investigation.
- Not controlling the interview process to ensure you gather the best information available.
If the compliance office is going to step up and tackle something needing an investigation without fumbling, they must “be prepared.” A little forethought can avoid many problems. Failing to properly prepare will lead to bad results and in some cases potential liability.
Tips To Avoid Mishandling an Investigation
- First, thoroughly assessing the problem in determining the level of credence given to the allegations or complaint, as well as what laws, regulations, policies, or code provisions may be implicated.
- Determine what resources and people will be needed to resolve them and how quickly the matter must be resolved.
- Ensure the individual(s) assigned to conduct the investigation are properly trained and all able to prepare a proper written report at the end of the investigation.
- To avoid confusion and conflicts, define the respective roles of the Compliance Office and Legal Counsel in advance of any investigations by a written policy. In most cases it is not necessary to involve legal counsel, except in a consultative role. However, in some cases the investigation needs to be conducted under direction of Legal Counsel.
- Determine the scope of what needs to be done and develop an investigative plan that includes what information is known, who may have needed information, and any needed documents.
- Assemble needed documents and have them available before conducting interviews
- Plan for each interview, recognizing there are three significantly different types of interviews; the complainant, witnesses, and subjects of the investigation requiring different approaches to each.
- Understand the limitations on authority in conducting an internal investigation, including the absence of any government legal authority.
- Respect the rights of all employees and recognize that in those organizations that are unionized will have added defined limits on the authority of the investigator.
- Remain objective in conducting the investigation, not allowing personal feelings to interfere with gathering fact and evidence, as this could not prejudice the results.
- Understand witnesses can’t be relied upon to remember accurately details that may also be influence by personal prejudice or experience. As such, anything they provide needs to be verified.
- Avoid taking short cuts that might undermine the accuracy or completeness of the investigation.
- Document carefully all evidence acquired and interviews conducted.
- Keep all records of the investigation under lock and key in an area with limited to only authorized persons.
- The written report on the investigation Must include all relevant aspects of the inquiry and be presented in a thorough, accurate, objective, understandable, and logically organized manner.
In some cases, there may be a real need for a professional investigation by professional investigators who have in depth training and experience. Turning to attorneys for this may not be the right answer as few are professionally trained investigators. For health care cases, some of the best qualified people may be former Special Agents from the Department of Health and Human Services (HHS) Office of Inspector General (OIG) or the FBI (if they worked in the health care space).
For additional information regarding Strategic Management Services investigation services, visit: https://www.compliance.com/internal-investigations-services/.Subscribe to blog