In the healthcare sector, workplace investigations are critical due to the unique confidentiality obligations and regulatory requirements that govern the industry. For healthcare executives, understanding the distinct challenges of these investigations is essential for maintaining compliance and fostering a culture of trust. This article explores the advantages of employing external investigators, highlighting their role in ensuring impartiality, expertise, and adherence to legal standards.
Triggers for Workplace Investigations
All California employers, including healthcare organizations, must adhere to the Fair Employment and Housing Act (FEHA), which mandates conducting workplace investigations upon receiving complaints of discrimination, harassment, or retaliation. This includes complaints that could lead to disciplinary action if substantiated, such as sexual misconduct, gross negligence, incompetence, physician impairment, unprofessional conduct, or unlicensed practice.
Events that may trigger an investigation include both formal complaints and credible informal reports. FEHA also requires employers to take reasonable steps to prevent unlawful discrimination, harassment, and retaliation, making prompt, thorough, and impartial investigations essential.
Internal vs. External Investigations
Choosing between an internal and external investigation is a significant decision influenced by the nature and severity of the issue and the employees involved.
Typically, internal investigators are employees within the organization, often part of the Human Resources team. They can swiftly address minor concerns, leverage organizational familiarity, and maintain control over the investigation process. Additionally, internal investigations may be more cost-effective.
Conversely, when issues involve management, physician misconduct, or complex allegations (such as sexual assault), or if a potential conflict of interest is presented, an external investigator may be preferable. Engaging an external attorney investigator can enhance objectivity and ensure privilege, which serves the organization’s interests. Hiring an external attorney investigator is particularly important when concerns about objectivity, expertise, or internal conflicts are significant. This choice fosters transparency, credibility, and trust among employees, leading to a fair and defensible resolution.
Considerations for External Investigators in Healthcare
When selecting an external attorney investigator, it’s crucial to ensure they have experience in the healthcare sector due to additional confidentiality requirements, privilege issues, and reporting obligations.
Healthcare organizations must comply with stringent standards under the Health Insurance Portability and Accountability Act (HIPAA), which protects the privacy and security of protected health information (PHI). Under HIPAA, PHI can only be disclosed under specific circumstances, and strict safeguards must be in place. These obligations extend to all employees, vendors, and contractors handling PHI, including external investigators.
Therefore, any external attorney investigator must enter into a Business Associate Agreement (BAA), a legally binding contract that outlines responsibilities for safeguarding PHI. Once engaged, they must adhere to all PHI requirements of the covered entity.
External attorney investigators must also be aware of the peer review privilege, which protects the records and proceedings of peer review committees from external disclosure. Familiarity with state-specific laws is essential to determine which records and proceedings are shielded.
Additionally, investigators should collaborate with healthcare executives to navigate reporting requirements under the Health Care Quality Improvement Act (HCQIA), the Patient Safety and Quality Improvement Act (PSQIA), and the National Practitioner Data Bank (NPDB). Some reporting requirements are mandatory, while others are voluntary, depending on the circumstances of each investigation.
Finally, investigators should be knowledgeable about laws concerning healthcare fraud, waste, and abuse, including the False Claims Act, Anti-Kickback statutes, and Physician self-referral statutes. They must also be aware of Section 1557 of the Affordable Care Act, which prohibits discrimination in healthcare.
Conclusion
Workplace investigations in the healthcare industry present unique challenges due to the regulated environment and the sensitivity of PHI. Whether opting for internal or external investigations, it is crucial to ensure the process is transparent, objective, and compliant with healthcare-specific laws and general workplace regulations.
Engaging an external attorney investigator familiar with the complexities of healthcare law can often be the best choice. By effectively managing investigations and understanding the nuances of the healthcare setting, organizations can maintain trust, ensure compliance, and protect their long-term interests.
[Note: This article originally appeared on Healthcare Business Today.]
