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The exit interview: a tool for litigation avoidance and corporate healthcare compliance

BY REED TINSLEY, CPA, CVA, CFP, CHBC

It is important for all employers, including those in the healthcare industry, to conduct exit interviews with departing employees. The consistent use of exit interviews serves numerous purposes, including protection of sensitive business information, achievement of overall improvement in workplace environment, and curtailment of employee turnover.

Using the Exit Interview

Exit interviews provide additional benefits to entities that deal with and are regulated by the federal government, such as those in the healthcare industry. With the numerous regulations and certification requirements applicable to healthcare facilities, exit interviews should be part of an institution’s overall compliance program. An effective healthcare compliance program will permit an entity to identify and address possible regulatory or statutory violations, as well as provide information necessary to assess the potential for litigation.

Healthcare facilities that participate in government reimbursement programs must be sensitive to fraud and abuse litigation under various statutes, including the anti-kickback statute, the Stark law (antiself- referral), and a number of civil and criminal statutes addressing false claims and fraudulent billing. Attention to these compliance issues will, in turn, lessen the possibility that an entity will become the target of an investigation by the OIG, HCFA, HHS, the DOJ, or some other federal or state agency.

Healthcare employers should also use the exit interview to gauge the possibility of “general” employment litigation, such as a claim by a departing employee for wage payment, harassment, or discrimination.

In order to address issues of compliance, and to prevent or prepare for litigation, exit interviews should be used to elicit information concerning illegal or unethical behavior, workplace quality, personnel issues such as quality of training/supervision, and other issues stemming from the employment relationship generally.

Uncovering Damaging or Illegal Behavior

When probing the possibility of illegal or unethical behavior or practices in the workplace, a healthcare employer should explore whether an employee knows of circumstances suggesting that 1) billing or medical records were altered; 2) false or misleading documents were submitted to a government agency; 3) expense reports were padded or falsified; 4) items of value were offered or accepted for referrals, or 5) legal or regulatory violations were covered up. To that end, the following topics should be explored:

• Did the employee witness any conduct that he or she would characterize as either unethical or illegal?

• Was the employee ever asked to engage in conduct that he or she believed to be either unethical or illegal?

• Has the employee heard rumors or reports of unethical or illegal conduct which he or she considered credible?

• Were any company documents, including documents created by the employee, removed from the institution and not returned? Does the employee have any copies of documents anywhere off premises?

• Has the employee ever given company documents to persons not employed by the facility? Has anyone else at the facility done so?

• Has any government investigator, agent, or attorney interviewed the employee or asked to interview the employee about possible unethical or illegal conduct relating to the facility?

• While employed with the company, did the employee or any family member own, operate, invest in, assist, or otherwise have an interest in any company or enterprise which competes with or does business in the healthcare industry?

The above list is by no means exhaustive. The list should be expanded to address areas of concern for an employer; it should also be tailored to address the employment circumstances of each departing individual.

Employees in coding or billing departments provide but one example of the importance of the exit interview. Because those employees are directly involved with issues of reimbursement, they have a hand in creating the documents that are submitted to the government for payment. If these documents contain false information or statements, they may provide the basis for litigation under the False Claims Act. A civil action for a false claim will include, among other things, inquiry into an institution’s awareness of government billing policies and requirements, as well as an examination of an institution’s own billing practices and policies. The knowledge possessed by an employee involved with reimbursement is crucial because that knowledge may be imputed to the employer in litigation. Thus, it is imperative to learn what employees in reimbursement-related positions know before they leave the facility’s employ.

Ascertaining the Possibility for Litigation

An employer should not overlook the use of the exit interview as a tool to explore general facets of the employment relationship. Discussion with a departing employee will enable an entity to identify and assess the possibility for civil litigation stemming from that individual’s employment. This litigation can take many forms, but employers should be especially sensitive to the possibility that a departing employee may be harboring a claim of employment discrimination or harassment. To that end, the exit interview should focus on an individual’s:

• Reason(s) for leaving. If the individual was terminated, it is crucial to examine his or her understanding of the events leading to the termination. A similar inquiry should be made if the departing employee was subject to disciplinary action.

• Beliefs concerning whether appropriate opportunities for advancement were available.

• Comments concerning the level of pay and provision of other benefits.

• Overall assessment of working conditions, including the workplace “dynamic” and interactions with supervisors and peers.

Healthcare institutions should also use the exit interview to learn more about an individual’s assessment of workplace quality. Thus, topics that should be raised and discussed during an exit interview include an employee’s opinion of the supervision he or she received, evaluation of the effectiveness of training, likes and dislikes about the institution and/or its policies, recommendations for change in the workplace, and overall assessment of working conditions.

Applying Information Learned

If the exit interview reveals that an employee encountered no illegal or unethical practices, the form used and notes made during the interview should be placed in the departing employee’s personnel file. If, on the other hand, the interview reveals that an employee may have witnessed illegal or unethical practices, or if information is uncovered which suggests that a departing employee has a complaint of harassment or discrimination, counsel should be notified immediately. An investigation must follow in order to diffuse the situation, assess whether the employee has viable claims, plan for the possibility of litigation, and preserve testimony and documents, should litigation ensue.

Information uncovered during an exit interview simply cannot be ignored, and statements made by departing employees must be taken seriously. Using the exit interview to monitor the potential for wrongdoing, unethical behavior, unsafe or unsound business practices, and litigation will help the healthcare employer run a more efficient facility.