Confidential Reporting: Management’s Responsibility

Confidential Reporting:Management’s Responsibility Arc’s Management Team October 13, 2011

Confidential Reports • What is a confidential report? • Someone wants to report something but… they don’t want anyone to know it was them

Confidential Reports • Why is there such a thing? • What’s in it for the reporter? • What’s in it for us? • Do we really need a wholepresentation on this?

Confidential Reports • Reporting concerns is a big – and scary deal – for staff • By the time they report a concern – especially confidentially – they have often struggled with it for a while • They are likely to be nervous and unsure if they can really trust this “confidential reporting” thing

Confidential Reports • Do people really fear retaliation? • Are people really afraid that their supervisor – or coworkers – or administration – might find out it was them? • And then treat them differently? • YES, YES and YES!!

Confidential Reports • What’s in it for them? • They don’t have to worry about being retaliated against • They are more apt to be more open and honest • Next time they have a concern, they will feel comfortable reporting to us instead of the government

Confidential Reports • What’s in it for us? • They are more likely to report to us as opposed to going to the government • If they are too afraid to report to us, they CAN go to the government – they have the right to • This can open us up to scrutiny, audits and … worst case scenario … potential false claims allegations

Confidential Reports • Why is it so much better for people to report to us versus the government? • If staff report to us, what we find (if we find), we can fix without any additional penalty • If staff report to the government – and it falls under the False Claims Acts, if we have to pay money back they can ask for up to 3x back what they paid us and stiff penalties – up to $11,000 per claim for the feds and $12,000 for NYS.

Confidential Reports • Why is it so much better (cont’d) … • Even if it doesn’t fall under false claims, the government may be able to extrapolate any findings(remember extrapolation???)

Confidential Reports • So … what’s so hard about taking a confidential report?

Confidential Reports • Scenario: • Marjorie, a staff person, asks to see you because she has something she needs to talk to you about. She wants her identity kept confidential. She’s clearly nervous as she sits. She shares a situation in her department, including relevant details about systems and procedures that only she would probably know about.

Confidential Reports • Scenario (cont’d): • You thank her for coming forward and assure her that you will not share her name with anyone. • Because you cannot fully investigate the situation without involving her department, you go to her supervisor and say, “I’ve had a confidential report,” and proceed to explain what was reported. You never mention Marjorie’s name.

Confidential Reports • Scenario (cont’d): • The supervisor thanks you for the information and begins to look into the situation. Once the review is complete, the supervisor pulls the reporting staff in and says, “I understand that you had some concerns. I’ve looked into them and I want to discuss them with you.”

Confidential Reports • Scenario (cont’d): • What’s the problem here? • What is the reporting staff going to think you did? • How could this have happened? • The next time this reporting staff has a concern, what do you think she might do?

Confidential Reports • What could have been done differently to prevent this from happening? • There are a few things that should be communicated to anyone making a confidential report – ideally BEFORE they tell you what the situation is.

Confidential Reports • What to say to confidential reporters: • “I will not tell anyone that you were the one who made the report unless required to by law.” • Why? … This reaffirms your commitment to maintain their confidentiality

Confidential Reports • What to say to confidential reporters: • “However, in order to follow-up on your concerns, I may need to work with other departments including yours.” • Why? … They may presume that you will handle this in a vacuum and feel duped or lied to if they find out you went to their department.

Confidential Reports • What to say to confidential reporters: • “Have you brought these concerns to your supervisor?” • If they haven’t, ask, “Why not?” • Why? … People should feel comfortable in bringing concerns to their supervisors. If they don’t feel that way, you will want to know so you can share that with the appropriate parties.

Confidential Reports • What to say to confidential reporters: • “Is there anyone in particular that you do not want me to involve in this situation? Why not? You need to know that in order to completely resolve this situation, I may need to go to them. If I do, I will not tell them who made the report.” • Why? … If you can resolve the situation without involving this person, it will serve to make the person feel more comfortable about having reported. • You won’t always know this until you hear the concerns.

Confidential Reports • What to say to confidential reporters: • “If you tell me something or details about something that only you would know about, people in your department may be able to figure out it was you.” • Why? … If it’s going to be obvious who made the report based on the information shared, the reporting staff needs to know this ahead of time.

Confidential Reports • What to say to confidential reporters: • “Other staff in your department – or elsewhere in the agency – may try to figure out who made the report. Unfortunately, this is human nature. Sometimes they are right and sometimes they are not. • “I will not confirm any such speculation.”

Confidential Reports • Why 1? … They need to be aware that people may talk about what was reported – and will probably try to figure out who the reporter was. They need to know that this is common and expected, so they are not caught off guard. • Why 2? … They need to be reassured that even if people guess the right person, that you will maintain their confidentiality

Confidential Reports • What to say to confidential reporters: • “The Arc has a non-retaliation policy. You cannot be treated differently by anyone including coworkers and management because you reported something you truly believe is happening.” • Why? … They need to be reminded that the agency does not tolerate retaliation for good faith reports and that if it happens, something will be done about it.

Confidential Reports • What to say to confidential reporters: • “If after making this report, you feel like you are being retaliated against, please let me know. Retaliation would likely be handled through the HR department.” • Why? … They need to know that retaliation will be handled but that someone other than you may be involved in dealing with it.

Confidential Reports • What to say to confidential reporters: • “Keeping what I’ve said in mind, what would you like to share with me?” • Why? …With the context you’ve provided, they may change or be more careful in what and how they share their concerns.

Confidential Reports • Why should we tell them all of this before they make the report? Can’t we wait till they’ve spilled their guts? • If they feel that what they will disclose could make them a target, they may opt be more careful in how they report • If they have already shared something that’s a crime, for example – and then want to retract – it would be too late.

Confidential Reports: • What do you mean it would be too late if they reported a potential crime? • There are some things that if they are already stated/reported, cannot be retracted: • Illegal activity • Fraud – deliberate falsification • Theft – taking agency property, stealing mileage, wages, etc. • Abuse

Confidential Reports • If they’ve already reported it and then decide they want to forget the whole thing because they’re afraid people will know – for illegal activities or abuse, it would be too late.

Confidential Reports • Are there any situations where we might not be able to maintain their confidentiality? • Court orders - this is not very unlikely • Self-disclosures to the government – this is somewhat more likely

Confidential Reports • Once they’ve make the report, is there anything I should say to them? YES! • “Thank you for bringing this to me. We can’t fix things if we don’t know about them.” • Let them know whom you will probably need to contact to address the issue and ask if they are OK with that.

Confidential Reports • “If I need to get back in touch with you, what is the best way for me to do so?” • Why? … Sometimes, you may need to reconnect. You don’t want to do it in a way that might appear to them to be inconsiderate or reckless.

Confidential Reports • For example … If you don’t normally interact with them, you wouldn’t want to walk into their shared office and ask to speak to them. • Why? The reporter will think that everyone will know it was them who reported the concern.

Confidential Reports • If you can, work around the people they don’t want you to contact. For example, if they say they’ve gone to their supervisor already and gotten nowhere and don’t want you to go to their supervisor, offer to go to their supervisor’s supervisor.

Confidential Reports • If you do need to go to someone they would prefer you not go to, tell them. THEN … remind them again that you will maintain their confidentiality and will only share what information you need to to resolve the situation.

Confidential Reports • Because you receive a confidential report does not necessarily mean that you have to do the investigation.

Confidential Reports • Situations that are reported generally fall into one of four categories: • Supervisory/operations • Human resources • Incidents/abuse • Corporate Compliance • Sometimes it’s not clear initially which category the situation falls in

Confidential Reports • Once you’ve taken a report, evaluate it to determine what type of situation you think it is. • Feel free to use the compliance officer as a sounding board. • Once you’ve figured out where the situation goes, contact them. • Remember to NOT disclose the name of the reporter. • Don’t allude to the reporter either in a way that makes their identity known. • Keeping what you share gender-neutral can help (e.g., not referring to the reporter as either he or she but “the reporting party”)

Confidential Reports • You will want to share as much information as you can including things like: • Whether they went to their supervisor • Whom they would not like to be contacted/involved – and why

Confidential Reports • In some cases, you may be the best person to handle the situation … i.e., • You’re in HR and you get a confidential report that’s an HR issue • You’re part of program management and it’s an operations issue in your program

Confidential Reports • Once the situation is resolved, get back in touch with the reporting party to close the loop • You may not be able to share everything, but share what you can • Get in touch with them they way they identified they prefer

Confidential Reports • How does confidential reporting differ from anonymous reporting? • Confidential means that the reporting staff has deliberately made their identity known to you • Anonymous means that the reporting staff has not made their identity known to you or has asked to make an anonymous report

Confidential Reports • What if someone calls “anonymously” but I know who they are? • If someone calls and asks to make an anonymous report and you recognize their voice, you need to treat it as if you don’t – as an anonymous report.

Confidential Reports • If someone meets with you and says they want to make an anonymous report, what they really mean is a confidential report • By presenting themselves to you, you know who they are (and they know you know) so they are no longer anonymous

Confidential Reports • Why do I need to know all of this? Aren’t you the compliance officer? • Staff are told that they can make an anonymous or confidential report to in essence any agency director-level staff or higher • That includes all of you

Confidential Reports • How often does this happen? • From my experience, a couple/few times a year. • However, the OMIG focuses strongly on confidential reporting and ensuring that people have a way to report concerns – without retaliation.

Confidential Reports • Oh Geesh!! OMIG again … • Yup! Their stance is that agencies like ours cannot have an effective plan that ensures we’re following the rules if people don’t feel comfortable in reporting their concerns. • They make specific mention to anonymous and confidential reporting mechanisms.

Confidential Reports • Summary: • Accepting confidential reports can help us make things better • It can help us avoid false claims allegations and additional audits or scrutiny • It’s a great way to show staff that we respect them and to demonstrate our integrity individually and organizationally • Make the commitment to maintain reporters’ confidentiality

Confidential Reports

A couple of other things (while I have your attention)… • All staff need to receive compliance training AND sign a code of conduct by year’s end • All supervisory staff need to fill out and submit a conflict of interest disclosure • You will be asked to sign an attestation to this effect – AND that you can prove it

A couple of other things (while I have your attention)… • I will be doing spot checks next year to assess if you can prove training occurred (like I’m doing this year) • In 2012, ALL staff will be asked to fill out a potential conflict of interest questionnaire (disclosure form)

Confidential Reporting: Management’s Responsibility