Avoiding “Gotcha” Moments in Compliance 

avoiding gotcha moments in compliance jay anstine

As compliance officers, we are continually placed in a position to influence the actions of others and help shape our organization’s compliance culture. Unfortunately, with a title like “compliance officer,” we have some image issues to overcome if we want our healthcare leaders to see us more like a business partner and less like an obstacle. One way to change that perception is to avoid creating “gotcha” moments when you’re working on a compliance-related matter. 

Defining “Gotcha” 

For purposes of discussion, I define “gotcha” as an attempt to try and expose or embarrass someone for doing something wrong. For example, if a department employee sneaks around to find the answer to a question and then asks someone on their team the question to see if they know the answer or maybe catch the co-worker in a lie, that’s “gotcha.” The problem with engaging in such behavior as a compliance officer is that to some degree, our job title sends a message that the goal of our job is to do this.    

What does “gotcha” look like in the context of compliance work? Let’s imagine someone is conducting an audit involving the review of medical-necessity documentation for physical therapy services. That person holds an entrance conference with the department director, and reviews the documentation against the regulatory requirements, but never communicates with the director about how they provide and document the service for billing purposes. After the audit, the person holds an exit conference with the director to discuss results – and reveals that all the claims involving their sample had missing documentation to support medical necessity. As a result, the department now has to refund several thousand dollars in overpayments and implement a corrective action plan.  

If this person didn’t take the time to talk with the director about how they’re doing the work and what concerns they were seeing, it would be a “gotcha” situation to wait until the end of the audit to reveal the issues they identified. The director would feel like the purpose of the audit was to embarrass them.  

The Fallout from “Gotcha” 

The biggest problem with “gotcha” moments is that they signal deception. This contradicts, and can render moot, any efforts you’ve made to build trust in the compliance program.  

In that audit example, if the person didn’t talk to those in operations about what they were finding and then delivered shocking news to them…at best they’re going to feel blindsided. At worst, they’ll feel disrespected as human beings. Put yourself in their shoes – would you feel respected if someone took this approach with you? 

“Gotcha” moments also can cause others to question your credibility or professionalism. In the example situation, what if the auditor was wrong in their conclusion that the documentation didn’t exist? It’s possible the documentation could be in another part of the medical record that they weren’t aware of, because they didn’t talk with the director. Such a situation would raise concerns about that auditor’s ability to do their work properly.  

Tips to Avoid “Gotcha”  

How can you avoid creating “gotcha” moments? Here are four tips that will help. 

Tip #1: Communicate with Your Audience – No Surprises 

Whether you consult employees on a matter related to the organization’s business or compliance agenda, conducting an audit, or anything in between – communicate with them. Conduct open dialogues to make sure you understand the facts of how they perform the work.  

Also, if you identify a potential issue, bring it up promptly and be transparent. If there is one thing I’ve learned in my career, it’s that healthcare leaders do not like to be surprised. That’s true whether one of their direct reports is notifying them of a budgeting or clinical care mistake, or if you as the compliance officer are notifying them of a high-risk issue. 

Tip #2: Have a Strategy for Delivering Bad News 

Unfortunately, sometimes, it’s our job to be the messenger of bad news. When faced with this situation, have a plan for how you will deliver the news that addresses two central questions: 

  1. How will I mentally prepare the leader to hear this news? 
  1. What is my proposed solution to resolve the issue and prevent a future occurrence? 

Since bad news has the potential to shock, the first question will help you figure out how the news will land with someone. The second question is intended to help you see the issue from your audience’s perspective and reduce their anxiety.  

Tip #3: Assume Neutral Intent When Consulting Healthcare Leaders 

When you consult healthcare leaders, assume neutral intent until your facts prove otherwise. Neutral intent means we don’t know whether a person acted with good or bad intent. When you assume neutral intent, you avoid inappropriately judging others or jumping to conclusions. Your communications also will be received with more respect and openness. 

Tip #4: Approach Your Work from a State of Curiosity, Not Judgment 

When you are working on an audit, or advising about whether or not certain conduct is compliant, question people from a place of curiosity and not judgment. Others will assume that you are attempting to judge them; you can avoid the perception of a “gotcha” situation by proactively stating your intent in asking questions is merely to understand.  

Most compliance officers work hard to foster a healthy compliance culture and bring everyone together towards a common cause. They also want colleagues to have a psychologically safe place to report issues and concerns. But “gotcha” situations undermine this work, and cause employees to lose trust in the compliance department. We need to always be working to avoid them. 

Jay is a compliance professional and consultant in Colorado. Jay is a healthcare lawyer with significant industry knowledge of the U.S. healthcare market. Over the past 20 years, he has worked for large for-profit and non-profit health systems and small physician-owned entities. In tackling the countless regulatory and operational issues for these diverse organization types, he has developed a deep understanding of the business of healthcare and the regulations governing the industry. In 2018, Jay became an adjunct faculty member with the University of Southern California, Gould School of Law, designing and teaching healthcare compliance courses.

Jay obtained his law degree from the University of South Dakota, where he focused on healthcare law. From 2012-2016, he served on the Board of a non-profit organization serving the medically underserved in Colorado (ClinicNET). He is also a member of the Health Care Compliance Association (HCCA), serving on the planning committee for the Mountain Regional Conference since 2008. He is writing a series of articles on compliance culture for the YouCompli blog. This post looks at building trust among your colleagues. This post looks at measuring your organization’s culture of compliance. 

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