Stranger Than Fiction: Strangers Conducting Compliance Interviews

Stranger Than Fiction: Strangers Conducting Compliance Interviews

“Stranger danger” is a staple of Halloween safety chats.

(Personally, I disagree with that approach. It isn’t clear to me that strangers are any more likely to pose a threat than folks who are well-known, but that is outside the scope of this article!) 

However, there is a real benefit to having “strangers” conducting interviews during internal investigations. The ability to conduct an effective interview will often determine whether the investigation will properly identify all the issues. I want to challenge a notion that’s quite common. 

In fact, it’s a position I held for some time, before witnessing a situation that caused me to change my mind. It’s easy to assume that having an interview conducted by someone the interviewee trusts and knows well will yield the most effective results. I will concede that there may be times when this is true. But more often, I think that as long as the interviewer is amiable and skilled, an outsider can be more effective.

Here’s the story that changed my mind.

I was representing a skilled nursing facility (SNF) that was talking to its employees to get to the bottom of some False Claims Act (FCA) allegations. The nursing facility’s general counsel, let’s call her Chris, was observing the interviews with me. She felt like she had a good relationship with her staff, and that people would be more likely to talk if she were present. I deferred to her. First, my client is the boss. I make recommendations but serve at their pleasure. And her position didn’t seem crazy to me. 

Wow, were we wrong. 

During our very first interview with an employee who both knew and liked the general counsel, Chris stepped outside to take a call. Within seconds after she left, the witness interrupted a question to say “Hey, there’s one thing I want to talk about before Chris comes back.” So began my lesson into the advantages of being an outsider. She wanted to describe a concern she had about some of the actions within the corporation, but she was worried about Chris’s reaction. The employee specifically worried that the information may reflect badly on Chris and that sharing it could cause Chris to view the employee negatively. In essence, the employee thought sharing the information may hurt their relationship with the general counsel. 

The more I considered it, the more I realized that outsiders offer a material advantage when it comes to interviews. If you’re looking for brutal honesty, do you go to the neighborhood barbeque or the Internet? By no means am I suggesting reading the comments on Internet articles, but it’s important to recognize that the anonymity of online forums often leads to increased candor. 

I live in Minnesota, and while some people misunderstand “Minnesota Nice” to be a form of kindness, it’s really passive-aggressive. Many will be hesitant to be completely honest with someone inside the organization. That will be particularly true if the person is embarrassed by what they have to say or worried that a more senior person will hold it against them.

I do believe that there are situations where close relationships matter. I have talked about the benefit of compliance professionals buying coffee for staff. I am starting to see a divide between situations where you are trying to reassure an employee that the organization has their back and internal investigations. 

My current thinking is that such assurances should come from insiders, and investigation is often best done by outsiders.

One final quick point. One of the strikes against external investigation is cost. And it’s true, it can cost a bit more to have an outsider perform an investigation. But if you’re thinking one of those costs is travel, I will note even before the pandemic, I did many interviews over the phone. Just as the Internet can lead to heightened honesty, so can a remote interview. There’s something about the distance that often results in people being more open.

The bottom line is that when you’re thinking about conducting interviews, you, like Pat Benatar, might be best served looking for a stranger. She was doing it because she was tired of the “same old Hello baby, how ya doing” and “looking for a little danger in her life.” But you should do it because it is likely to get you a better interview. 

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David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron's Health Law Group. David assists clinics, hospitals, and other health care 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 this position is supported by the law or represents government overreaching. David is a member of the RACmonitor editorial board and is a popular guest on Monitor Mondays.

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