In a recent article, I quoted Dave Mason to illustrate the point that it can be reasonable to question authority.

At times, however, people make unreasonable challenges. An irrational employee is not only a huge frustration; they also present a major compliance risk. Many qui tam lawsuits being with an employee who mistakenly believe you are breaking the law but won’t listen to reason.

While it is true that in most cases you will ultimately be able to prevail in an investigation when the allegation is based on an inaccurate understanding of the law, there is no assurance that the victory will be swift. Groundless allegations can impose economical and emotional costs. An employee who uncritically reaches the conclusion that conduct is legal, cavalierly concluding, “We’ve always done it that way” or “Everyone does it,” is even more dangerous than the employee who reaches a knee-jerk conclusion something is prohibited. For this reason, it is well worth the effort to lower the risk of erroneous conclusions.

This risk management starts in your hiring process. The best strategy for avoiding compliance professionals with black-and-white thinking is to avoid hiring black-and-white thinkers. Critical thinking skills may be the most important trait in the compliance department. To reach the right result, an investigator must determine whether someone is lying about key facts, analyze the law to determine whether there is a problem, and consider advice from counsel to decide whether to follow it. I would argue that knowing the rules is less important that an ability to analyze facts, people, and rules. People can easily learn rules. Learning a new way to think, while possible, is usually far more challenging.

Target your interviewing process accordingly. Ask candidates to describe occasions when they were in a disagreement, and how they handled the dispute. Ask them to describe situations where they figured out a widely held belief was wrong, or they caught someone in a lie, and ask them to describe in detail how they did it.

Encourage people to question and probe. Don’t shut someone down when they want to ask “why” or “how” questions. “Because I said so” may be a common phrase of parents, but it should never be uttered in a professional setting.

Then, when it comes time for employee education, emphasize critical thinking. Every businessperson since Henry Ford understands the benefits of standardization. The understandable desire for simplicity leads organizations, particularly larger ones, to emphasize clear blanket policies over nuance. There is a logic to this approach, but simplicity comes with a hidden peril. Compliance is all about nuance. There may be times you opt to refund money in a situation that is grey. That may be the wise decision. But you want people to understand that the decision was a choice, not a requirement.

 Explaining subtlety is time-consuming and complex, but think of the following real-world example. You choose to refund every time you find an E&M chart where the documentation is subpar. The total dollar amount involved is minimal, so it’s better safe than sorry. Then, the government comes in and tries to calculate an error rate for your entire organization. The sum is astronomical, so you want to assert the legal argument that as long as the work was provided, the claim wasn’t overpaid. How will your employees react? If, up until then, you have mechanically acted as if “If it isn’t written it wasn’t done is the law,” how will the government view this sudden positional shift? It is much more effective to acknowledge regulatory uncertainty or inconsistency now rather than adopt arguments only when you are in a big fight with the government.

The regulatory framework is complicated enough that we should be skeptical of anyone who boldly asserts they know all of the answers and who discourages debate.

Not a week goes by where I don’t learn about some rule I misunderstood, or was entirely unaware of. An employee who feels insecure will often struggle to admit uncertainty, or admit a mistake. Look for employees who have the confidence to admit fault. A great interview question is “How often are you wrong?” The answer can tell you a lot about how the person will approach problems.

Seek employees who embrace the goal of being open-minded and seeing shades of grey.

About the Author

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and is a member of the RACmonitor editorial board. 

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