TRANSPARENCY for EQUAL ACCOUNTABILITY in MEDICINE

August 22, 2007

COMPLIANCE LINE ACCOUNTABILITY and COMPLIANCE OBLIGATIONS

          Compliance Lines were created back in the late 90s in response to Sarbanes/Oxley otherwise know as the “SOX” legislation to combat fraud.  They were intended to encourage safe reporting of fraudulent activity and dangers towards the public from within an organization, followed by a proactive approach towards internal self-policing.  Companies and organization who established a Compliance Hotline were rewarded in that, if wrongdoing was uncovered, they would face lesser fines than if there was no internal efforts to prevent corruption.  Most Medical facilities already had a “Risk Management” Department to alert them to dangers towards patients, but Compliance went beyond this mandate to examine billing and financial aspects as well.

         These well intentioned efforts at identifying fraud, negligent and dangerous practices to swiftly deal with such issues internally without involving outside agencies were very noble in principal.  However, market forces soon insured that these quasi independent departments were hijacked to protect and serve Corporate financial interests!  Since “Risk Management” has been in place far longer, more numerous examples of their corruption have surfaced in independent reporting. There are certainly enough widespread examples of deficient protection towards those who report to “Risk Management” that mandatory regulation of their code of practice is not only warranted but long overdue.   

         Unfortunately, the wanton manipulation of Risk Management just provided the model for setting up sham Compliance Lines who’s sole purpose was to protect institutions from external scrutiny.  This began with selecting the right candidate to create a Compliance Line led by a Chief Compliance Officer who was a loyal internal appointee; someone who could be trusted to protect Corporate interests with a view to further advancement of their own career.   While this might sound incredibly cynical there are clear examples that this is exactly what has taken place in some instances, with an internally appointed Chief Compliance Officer already rewarded by significant promotion within the same Healthcare conglomerate.   This cannot be dismissed as mere coincidence and must be examined for conflict of interest due to the sensitive nature of their task in establishing and monitoring Compliance.

        Regulations are urgently needed to reign in this abuse of Compliance monitoring as blatantly self serving corruption now leaves the general public with fewer protections than before the inception of Compliance Hotlines. The main object of such regulation would be to insure that Compliance Lines were genuinely independent and unbiased when they conducted thorough impartial investigations that in future must be subject to more rigid external scrutiny. In addition the rules governing reporting must facilitate that frequently touted objective that remains so illusive today; they must offer legitimate tangible protection from retaliation to all employees reporting negligence, fraud and abuse of power by Management. The current system allows retaliatory protection to be stalled indefinitely by the disciplinary process and abandoned after an employee is removed under suspicious circumstances.

       Zero protection for Whistleblowers promotes negligence, corruption, bullying and abuse of power in the workplace.  It negates any benefits that might have been possible through establishing a Compliance Hotline to encourage internal reporting.  Employees have already become very wary of reporting anything up the “Chain of Command” to Management, they no longer trust Risk Management and now the dirty little secret about corrupt Compliance Hotlines is starting get out.  The seemingly unequivocal protection offered in their literature and on the internet is bound by impossible limitations and restrictions that in reality render no retaliatory or Whistleblower protections what-so-ever.  Unfortunately employees do not discover this until they have fallen into the trap of believing that they will be protected from retaliation, only to be betrayed. 

THE FOLLOWING MANDATORY REGULATORY CHANGES ARE URGENTLY NEEDED TO PROTECT THE PUBLIC FROM NEGLIGENCE AND CORRUPTION, PLUS PROTECT THOSE WHO ATTEMPT TO BLOW THE WHISTLE:        

1. Compliance Lines are duty bound to investigate all allegations of dangerous, negligent or fraudulent practice without delay or any regard for the status, current situation or alleged lack of credibility of the person reporting. Reprimand or dismissal must never be sited as legitimate grounds for ignoring a report of potentially dangerous, negligent or fraudulent practices.

Without this stipulation a facility or organization guilty of violations can use protracted delays and stalling tactics to postpone an investigation indefinitely.  In addition they can unjustly manipulate the disciplinary process to exclude Compliance intervention. While reprimand or wrongful termination is permitted to negate the credibility of an informant this tactic will encourage retaliatory intimidation to silence or remove an outspoken employee.

2. Employees should be able to report to Compliance Lines without going through a “Chain of Command” in their workplace first as they may genuinely fear Managerial retaliation.

 If reporting up through the “Chain of Command” is a prerequisite before contacting Compliance it becomes impossible to report the abuse, negligence or fraud perpetrated by a Manager and it leaves the employee vulnerable to a tangible fear of retaliation or dismissal.

3. There must be no postponement or delay before a Compliance Line agrees to investigate and very strictly monitor the dismissal of any employee who reports being targeted by Management.  Waiting until after the Grievance process, Arbitration and all other avenues of recourse have been exhausted, cannot possibly offer adequate retaliatory protection to a vulnerable targeted employee in the interim.

 If an employee contacts their Compliance line to report retaliation or wrongful termination, but the proceedings are not vetted for legitimacy and monitored for fairness then abuse of power and manipulation of the disciplinary system is encouraged.  Special attention must be paid to any evidence of irregularities or prejudicial behavior that precipitated a suspicious firing,

 4.  Compliance Lines must not be allowed to review allegations or charges concerning the conduct of an employee where written detailed documentation does not exist or the employee has never been permitted to review all of this documentation and therefore cannot respond to or refute its validity in any way. Employees must never be denied full access to their own personnel files or pay records even after dismissal.

A general category of event that might satisfy the basic reason given for dismissal is not valid without a detailed written documentation of exactly what occurred as, without such documentation and without the accused being allowed full access to it, the details can be changed and the seriousness escalated after the fact to secure permanent removal. If an employee does not know exactly what they were accused of doing they cannot possibly mount any defense at all against such nonspecific charges.  There is no legitimate reason to deny an employee full access to their own personnel file or pay records.

5. A Compliance Line must document or provide the employee’s documented written response to all allegations or charges made against them giving that employee’s response statement equal attention and credence.

An accused employee who is prevented from submitting documentation of their response to allegations is unfairly denied the right to prove their innocence and defend their reputation.  No requirement for equal representation encourages false accusations that erroneously appear to go unchallenged by the accused: no charge is valid without a response or at the very least a signed refusal to respond.

6. No employee should be discredited or removed with charges that are not documented in full and in writing in documents that are made fully and promptly available to the accused prior to the date of their discipline. A timeline of all included paperwork with submission dates must accompany this. No additional charges or embellishments added after a dismissal should be considered relevant or credible evidence of misconduct by the fired employee.

Charges or allegations against an employee that are not presented prior to an employee’s removal are simply not valid. The legitimacy of charges can only be verified by an accurate timeline of events leading up to the employee’s removal. Without this stipulation employers can conduct a “Witch Hunt” where the targeted employee’s file can easily become a revolving door of late submissions and backdated entries accumulating unnoticed by the accused for many months after they are fired without cause.

7. Compliance Lines must remain totally impartial without demonstrating bias towards protecting the facility or the organization’s best interests at the expense of an employee, This is especially important with regard to the potential for inequality in disproportionately ignoring the equal accountability and necessity for discipline of Management found guilty of dangerous, negligent or fraudulent practices.

When an employee is dismissed on the basis of a technicality or an inconsequential minor infraction used to silence their protest, but the negligence or corruption they report is virtually ignored and no one is disciplined for actions that present a serious risk to people’s lives then the system is seriously biased.

8. A Compliance Line should not be Managed or staffed by internal appointees with a vested interest in protecting the best interests of the facility or organization.

A serious conflict of interest exists when Compliance Line staff are recruited from internal departments: they may anticipate another more lucrative transfer in future, if they protect the best interest of the facility or organization they are supposed to be monitoring in a fair and unbiased way.

 9. When approached by an external agency a Compliance Line must demonstrate in detail the evidence on which their findings, even a finding of no cause for concern, plus their decisions regarding corrective measures and proportionate discipline following an investigation, are based.

 If a Compliance Line knows that their findings will be accepted without a presentation of the facts then they are under no pressure to really investigate at all.  This will encourage meaningless cursory internal investigations to placate external Agencies and evade external scrutiny.

10. A basic report of Compliance Line findings, even a finding of no cause for concern, plus decisions regarding corrective measures and discipline following an investigation should be made available to the person reporting in order to provide assurance that the situation has been handled appropriately by internal Compliance.

When an employee reports abuse, negligence or fraud they may have considerable worry over the consequences of inaction and they have a right to know that genuine corrective measures were taken, that people were held accountable and that they do not need to report the matter to any external Agencies due to inappropriate Compliance Line inaction.

 11. Compliance Lines are duty bound to investigate all allegations of retaliation and wrongful dismissal, despite any rulings against the employee, even after the employee has been permanently removed from the workforce and even if an employee has felt compelled or bullied into writing a solicited letter of resignation or accepting a financial settlement.

If a Compliance Line can simply write off the need to investigate a case of retaliation or wrongful dismissal because retaliatory practices have succeeded in totally removing an employee or bullying them into writing a solicited letter of resignation to end all further abuse then this only encourages more aggressive, corrupt and relentless tactics.

12. Compliance Lines must be subject to external scrutiny by Public Agencies and Government Regulatory Bodies. This is especially important when an employee removed under suspicious circumstances, reports strong suspicions of an inappropriately dismissive or purely cursory investigation with the complete refusal to pursue any charges against serious offenders without explanation, or valid evidence of an internal cover-up.

When a facility or organization knows that Public Agencies and Government Regulatory Bodies are powerless to subject them to external scrutiny, that they must accept the findings or corrective strategies of a cursory internal investigation conducted by their Compliance Line without question, the manipulation and corruption of Compliance Lines is fostered and condoned. There is a very strong incentive for facilities or organizations to create an internal Compliance Line for the express purpose of avoiding external scrutiny and highlighting any outspoken “troublemakers” for swift removal from the workforce. This is the diametric opposite of the concept that inspired the creation of these Compliance Lines in the first place and the general public is left with fewer safeguards and protections than existed before their inception.

                                                                                                                                                            

WHERE IS THE EVIDENCE TO SUPPORT THE NEED FOR DRASTIC REFORM

      The main purpose of demanding that the Compliance Line at my former Hospital must investigate my particular case is to expose the gross inadequacies in the Compliance process itself.  I believe that this Compliance Line is still legally obligated to investigate my allegations of retaliation even after the Hospital’s retaliatory efforts succeeded in my permanent removal. This ongoing claim is based on the well established premise of “Truth in Advertising” which would require the Compliance Line to adhere to their own written assurances as published on the Website.  The Compliance Line cannot guarantee retaliatory protection in print and on the Internet, while there is never any intention to protect Whistleblowers and retaliatory protection is repeatedly denied after an employee places all of their trust in that commitment. 

      Despite their compelling written assurances I was extremely alarmed to discover the impossibly restrictive limitations: the Hospital’s Compliance Line claimed that it was standard policy for them to maintain a strictly hands off approach throughout the entire disciplinary process. This extending way beyond my initial wrongful dismissal to Grevance hearings, Mediation, Arbitration and all efforts related to my attempts for reinstatement, a process that took several years!  During this time, and for no legitimate reason, the Compliance Line adamantly refused to monitor what became an increasingly blatant and thoroughly corrupt process that included among other things a documented finding of “Unfair Labor Practices” by the Labor Board. 

       Bear in mind that this followed a wrongful discharge for which the Hospital had been unable to demonstrate to unemployment compensation that they had a legitimate cause for my dismissal.  The only reason the Hospital was able to win an Arbitration ruling was by submitting additional rule violations that were backdated and entered into my file months after I was removed: I saw them for the first time 15months after being fired. Top Managers were able to continue lying under oath with impunity; there seemed no end to their relentless pursuit of my removal at all costs.  The Director of Surgical Nursing herself concocting a harrowing new tale of my threatening her life, an incident that supposedly she had never mentioned to other Managers for over 15 months?  If such an incident had occurred I would have been dismissed on the spot, but no one ever questioned why there wasn’t a single report to Hospital Security regarding a “threatening” employee.  This deliberate pattern of deception simply would not have been possible with vigilant monitoring of my paperwork by Compliance and intervention to prevent Managers from constantly reinventing their cause for dismissal.   

       After I insisted that there could be no delay in investigating the very serious danger towards patients that I had documented and submitted in a written report, a cursory investigation of my allegations was conducted. I say cursory because there was no interview scheduled to go over the details of my report or examine any evidence.  When an employee places their job on the line to expose negligence and they are left to suffer serious retaliation consequences simplistic reassurances that the situation has been dealt with are understandably regarded with a high degree of suspicion.  When I enquired I was told casually over the phone that the investigation had discovered that there was “some truth” to my charges, but the Compliance Line had decided to “just keep an eye on things.”   Knowing that no specific corrective measures would be taken and no one would be held accountable or disciplined for ongoing negligence that had risked the safety of multiple OR patients for a period of several years was really quite shocking.  

        This commitment to inaction makes a total mockery of the Hospital Compliance Line’s mission and reveals the true purpose of creating the Hotline: to obscure financially beneficial negligent practices and facilitate the targeting of “troublemakers” who attempt to expose the truth.  Their complacency and refusal to intervene was an especially cruel blow at a time when, despite the Labor Board finding, the perpetrators were permitted to continue doctoring my employee file and restricting my access to false accusations.  In stark contrast to the very serious patient safety problems I had reported, these inconsequential, rather vague, behavioral issues had absolutely no bearing on my competence with regard to my job; none of this ever placed a single OR patient in danger at any time. 

      Under circumstances where my credibility and my entire career were in jeopardy, there was still no access to desperately needed retaliatory protection from the Compliance Line; I was outraged!  This represents grossly disproportionate punitive measures taken against those who dare to report negligence while those who perpetuate deliberate negligent understaffing, frequently risking the lives of multiple patients over an extended period of time, remain unchallenged because their negligent policies protect Corporate financial interests.

       The Compliance Line had assured me that if all other avenues of recourse failed they would investigate my allegations of retaliation.  The policy that compels a Compliance Line to postpone retaliatory protection until after the worst abuses of an unmonitored disciplinary process have succeeded in their targeted objective is simply ludicrous.  However, the offer of any recourse to delayed justice was just a calculated lie to fob me off and stall for time, because the Compliance Line had no intention of ever investigating my case. When I called them to say that Arbitration had ruled against me, following a hearing where Managers had lied under oath to secure my permanent removal, I was told that since I was no longer an employee they had no obligation to investigate!

        By ignoring nearly three years of relentless retaliatory tactics the Compliance Line knew that the Hospital was bound to prevail.  This corrupt policy encourages retaliation and serious abuse of power.   They have now refused the previously assured recourse to an investigation due to the success of Managerial retaliation!  The excuse that now Management had succeeded in securing my removal, the continuous reports of their relentless retaliation were irrelevant, the Compliance Line were determined to accept the result without challenge.

 According to the standard policy of the Compliance Line at my former Hospital there was no point at which I was ever entitled to retaliatory protection or an investigation into my wrongful termination, despite reporting serious negligent practices that were confirmed as true, but virtually ignored

  

       The independent objectivity of my former Hospital’s Compliance Hotline is confidently touted on their Website however, the Chief Compliance Officer that I dealt with was indeed an internal appointee.  He was also later promoted to a top level position at another Hospital within their Corporate network, hence the implication that this conflict of interest made him heavily biased towards protecting the Hospital’s best interests at the expense of conducting a thorough internal investigation and offering retaliatory protection to a clearly targeted Whistleblower.  This course of career advancement might not seem inappropriate if the conduct of the Chief Compliance Officer concerned had not remained so heavily biased, disproportionate and dismissive concerning the negligence issues I had reported.  To read about the Chief Compliance Officer and the job track that I personally believe smacks of conflict of interest, please visit this link: 

                 http://www.hopkinsmedicine.org/Press_releases/2003/12_24_03.html 

      In hindsight it is simply inconceivable for me to ever believe that a Compliance Line set up in this way, and deliberately restricting access to vital retaliatory protections, can possibly be intent on focusing on the identification and elimination of negligence, safety violations, fraud and corruption.  Under such biased and consciously deceptive standards of oversight one might easily consider this type of operation borderline criminally motivated, due to a valid potential for obscuring ongoing negligence and fraud.  Bear in mind that the very existence of a Compliance Line will reduce the impact of punitive fines and distance an organization from more stringent external scrutiny.  We have no way of knowing how many other reports of serious negligence, safety violations or fraud have been covered up using this deeply flawed process.  I do not know how pervasive this Compliance Line corruption is at other Medical facilities, but if it only represents the deliberate deception of Public Agencies and Government Regulatory Bodies at this one Hospital, it is one Hospital too many! 

      I would welcome a full public inquiry into the functioning of this and other Compliance Lines with a view to implementing vital safeguards to restore the integrity of such programs, with a strong mandate to protect Whistleblowers.  There is no legitimate reason for the Compliance industry to reject regulation that would demand a consistent policy towards vital retaliatory protections.  Until there is a public inquiry and I have an opportunity to testify under oath regarding the corrupt handling of my case, the most I can do is warn patients and employees via this Blog.  Be warned: Compliance is not always Compliant, and may protect non-Compliance!  Employees need to know that if a Compliance line refuses, or attempts to postpone, retaliatory protection you must act swiftly to bypass the hotline and report directly to external Public Agencies and Government Regulatory Bodies.  The Investigation into my case will merely demonstrate that the current dangerous situation warrants an urgent public inquiry into all Compliance Lines.  To demand the investigation into my case, go to: 

                   http://www.thepetitionsite.com/takeaction/938995258

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