Step by step: What to do when the hotline rings

When allegations of billing mistakes or outright fraud arise, your initial response — how you act at the first sign of trouble — could spell the difference between a successful resolution of the problem and a train wreck for your institution.

The first rule in dealing with complaints is to document thoroughly, says Michael M. Mustakoff, JD, of the law firm of Duane, Morris & Heckkscher LLP in Philadelphia. Mustakoff was one of six attorneys who negotiated a settlement with the government in Pennsylvania’s 72-hour window case.

"You record it because if you deal with [the problem] responsibly, you want to have a record of why you found that there was no problem or how you dealt with it," Mustakoff says. "For example, the person who called your hotline with an issue may have in fact gotten a satisfactory answer, and you want to be able to show how you resolved it at the time."

Mustakoff also recommends relaying any requests for information that come over the hotline to an outside attorney. Although the hotline call isn't protected by attorney-client privilege, subsequent communications between the compliance officer and the attorney will be.

The next step, of course, is to find out whether the complaint holds water. "Just because someone is doing something erroneously, that doesn’t mean they’re doing it either recklessly or with an intent to defraud," Mustakoff notes.

If the error resulted from a simple mistake, bring the error to the attention of the person who committed it and resolve any payment discrepancy. And, again, document what you did. "Establish a clear paper trail, self-disclose to the fiscal intermediary, and let the hotline complainant know how you resolved things so they understand you didn’t sweep it under the rug," Mustakoff says.

But what if the error wasn’t just a simple mistake? First, understand that the offending individual is entitled to counsel separate and apart from the institution. Then decide whether it’s in the best interest of your facility to disclose the misconduct. Although most hospitals feel some obligation to self-disclose, physicians may feel differently, Mustakoff says.

"Until the Justice Department grants the kind of immunity that is granted by the IRS and the Anti-Trust Division for an honest and self-initiated self-disclosure, some individuals are going to be much more reluctant [to disclose]," Mustakoff says.

If federal investigators do show up at your door, be advised that you can’t tell employees not to talk to them. You can tell them, however, that the decision of whether to cooperate with the investigation is an individual decision that is best made by them and their attorney.

"I usually tell employees of institutions I represent that the federal agents who are coming through the door are not the same people who acted as school crossing guards when they were growing up," Mustakoff says. "They are there to do a job, and employees should not mistake a friendly demeanor for true friendship."