Having my say — Lessons from a nightmare

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Editor's note: The author was the first corporate-level nursing home official in Iowa to be indicted on criminal charges related to resident care. If you're in healthcare, you're a problem-solver. Every day you are faced with multifaceted issues involving complex decisions impacting the lives of those you care for. Some days the decisions are relatively easy; others, the decisions are not. In fact, some days the decisions are simply overwhelming. No matter what you do, nothing seems to go right. Every decision seems to go wrong.

We, as healthcare professionals, keenly understand that situations differ and necessitate consideration of the personnel involved, details of given situations, and the circumstance. Each situation is vastly unique, yet the ability to accurately make decisions that address the issue at hand is crucial. While one's personal ethic is a key element in the decision-making process, managers in healthcare are oftentimes faced with dilemmas that affect residents, staff, families and the general good of the community. Oftentimes, problems that appear relatively simple at first become confusing, which somehow, whether directly or indirectly, affect everyone associated with the facility.
Personal experience
Situations such as these have been commonplace in my career, as I'm sure it has yours. After spending the earlier part of my career as a facility administrator handling relatively simple decisions, I became exposed to more frequent and complex problems as a regional director for a not-for-profit chain of nursing facilities in the Midwest. Problems that once seemed complex as an administrator became relatively straightforward as a regional director. That all changed in 1999.
In the summer of 2005, I was charged in a criminal case by the United States government for an alleged incident that occurred six years prior to the indictment. I was charged with conspiracy, healthcare fraud, making false statements related to healthcare matters, making false statements in a matter within the jurisdiction of the Health Care Financing Administration (HCFA – now known as the Centers for Medicare & Medicaid Services) and obstruction of a federal audit.
Collectively, there were nine counts. The charges alleged attempts to conceal an injured resident from a state surveyor during an inspection.
After years of hearing the grand jury was collecting information on the case, I thought the issue had been resolved. But then, days before the statute of limitations was about to run out, I found out I was being charged personally.
The 15 months following the initial contact from the prosecutor's office was nightmarish. I can say that had I not had competent legal council, I think I would have been completely helpless.
In August 2005, we reached an agreement with the federal government relative to the charges. A "trial diversion" program was agreed upon, whereby I would be required to accomplish certain objectives within a specified period of time.
These objectives included a variety of tasks, including community service and public exposure of the case.
Had an agreement not been made, I would have stood trial. It would have lasted an estimated two to three weeks at a cost of approximately $200,000. That's the good part. That's if I had won the case.
Had I been charged with these civil and criminal penalties and lost, I would have faced up to 50 years in prison and $2 million dollars in fines. I would have been disbarred, lost my license, my profession and my livelihood.
The situation destroyed my marriage. Within a fairly short period of time, the thought of prosecution hit us hard. Concern of how this could affect our livelihood undermined our plans, our hopes and our future.
After three years of what seemed to be constant worry, we got divorced. She later admitted that she feared my possible public prosecution and potential incarceration and said it was a significant contributing factor in the divorce.
Shortly after the indictment in 2005, the story hit the newspapers. For a day I listened to the story of a healthcare executive charged with plotting against the United States government.
Right or wrong, the media feasted on the story. In addition to being personally humiliated, the industry was, once again, bashed for allegations of wrongdoing. It hurt us all.
Professional code of ethics
As healthcare professionals, we are expected to uphold a higher standard of moral leadership. We are expected to be trustful and honest professionals that use good judgment when establishing acceptable parameters of action.
In every situation, it's obvious we must always do what is in the best interest of our residents, in the most honest manner possible. But in reality, decisions are not always straightforward when considering the myriad rules and regulations. At times, we struggle to balance professional role conflicts, organizational role conflicts and interpersonal role conflicts. To eliminate this, we have to establish simplified decision-making processes.
Compliance program
It's critical that each healthcare facility have a comprehensive compliance procedure in place so that important decisions regarding survey disclosure are not made inappropriately and without due regard for the law. A clear and concise plan of what will and will not be given to the surveyors is necessary to eliminate the guesswork during the time of a survey.
Laws do not specifically spell out exactly what is to be given to surveyors when requested; therefore, facilities must responsibly define these parameters, which specifically guide employees to make the right decisions during moments of uncertainty. We must make compliance a daily reality by our actions and decision-making methodologies – and not just words in a policy or procedure manual. It's seldom that simple.
In 1998, the Office of Inspector General (OIG) published recommendations for the healthcare community in establishing a comprehensive compliance program. Seven elements of this program should include, but not be limited to:
&bull implementing written policies, procedures and standards of conduct;
&bull designating a compliance officer and compliance committee;
&bull conducting effective training and education;
&bull developing effective lines of communication;
&bull enforcing standards through well-publicized disciplinary guidelines;
&bull conducting internal monitoring and auditing; and
&bull responding promptly to detected offenses and developing corrective action.
While law does not mandate these elements, these systems would significantly improve operator ability to quickly identify and prevent fraudulent activities. A facility quality assurance committee can accomplish many of these compliance functions. Facilities must customize their compliance system depending upon their unique structure and size.
Ultimate responsibility
When compliance decisions become problematic, consulting with a trusted lawyer is recommended. Seldom are two situations exactly the same. When there's a gray area, calling a lawyer who specializes in healthcare law is usually a good bet.
Most often, the ownership entity or governing body will have the final say on whether an attorney is retained; however, if the situation remains unclear, it would be appropriate to insist on legal input before a decision is made, especially when it involves issues related to compliance with federal and state law.
Ultimately, a healthcare administrator must remember that as an autonomous entity, every decision that is made in your facility at the time of your management is your responsibility. If input from legal counsel remains questionable, ask for the code that justifies their position and have the specific code information reviewed prior to making a final decision that could potentially devastate your life.
Prior to this situation, it never entered my mind that I could be a target of the federal government. Establishing a clearly defined compliance program can only assist you in avoiding the experiences I've had.
Maintaining ongoing control over the entire compliance program will sustain you and your organization – not if, but when multifaceted decisions come knocking at your door.

Larry Hinman, NHA, is director of operations, Signature Care Centers, Johnston, IA.
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