Our guest: Ronald Chapman II, Esq. LLM, Chapman Law Group, Safe Harbor Group
In today’s episode we explore crtical issues in healthcare compliance and regulation. Join me in a fascinating conversation with Attorney Ronald Chapman II, a distinguished healthcare law specialist whose work I first discovered through his thought-provoking article ‘Shielding Physicians: The Untold Story of Legal Preparedness.’
Ron brings unique insights from his extensive experience representing healthcare providers across multiple states, and today we’re diving deep into the intersection of healthcare compliance and legal defense. We’ll explore everything from proactive compliance strategies to the complexities of DEA regulations, and even tackle the challenging ethical questions surrounding suspected drug diversion in healthcare settings.
Whether you’re a healthcare administrator, compliance officer, or medical professional, this conversation offers valuable perspectives on protecting your practice while maintaining regulatory compliance. Ron shares his expertise not only as a legal defender but also as a consultant helping healthcare organizations build robust compliance systems.
Get ready for an enlightening discussion that bridges the gap between legal theory and practical healthcare compliance.
Transcript
Terri
Welcome back listeners to Diversion Insights. My guest today is attorney Ronald Chapman ii. I first became familiar with Ron when I read an article that he co authored titled Shielding the Untold Story of Legal Preparedness. That was an interesting article. Ron’s specialty is healthcare law and I’m going to ask him to tell us what that’s about. So let’s start there. Welcome Ron. Give us an overview.
Ronald Chapman II
Thank you so much. So first and foremost, I’m a defense attorney. I defend healthcare professionals usually these days related to healthcare fraud and drug diversion allegations, physicians who are accused of over prescribing healthcare fraud, overbilling, those sorts of things, but also folks who are facing and companies who are facing government investigations even if they don’t rise to the level of criminals. So false claims act, civil monetary penalty cases against pharmacies and other health care entities. I started out in this profession after a stint as a prosecutor in the Marine Corps.
Ronald Chapman II
There I was prosecuting some high level government cases and doing a ton of investigations and I realized that really cutting edge area of criminal law practice or law practice related to government investigations on the defense side is really in the healthcare industry because it’s one of the most regulated industries that we have. So I’ve been able to use those skills that I gained in the military and, you know, the last 12 or so years of almost exclusively representing health professionals and been fortunate enough to have some pretty good results. 150 acquitted counts so far on behalf of health care professionals and entities and about 550 million or so saved in fines and forfeitures for clients to date.
Terri
Yeah, those are big numbers. So as just this is, I’m interested in, as I’ve listened to various podcasts and stuff where I’ve heard you interviewed, you mentioned different states. You know, I’ve got a case in this state. How does that work with, are you licensed in all of those states? Are you available to work for people in multiple states and represent them?
Ronald Chapman II
The fortunate part about being charged in a criminal case or being investigated by the feds is that you can select counsel from virtually anywhere that you want to. And the reason being is these federal statutes are largely the same. The case law can be a little bit different in certain jurisdictions, but federal court usually allows somebody like me. I live in Michigan, have offices in Miami, Los Angeles, Nashville, Sarasota. I can still practice in Alabama, in Georgia and Washington. I have a case in Alaska coming up pretty soon as well. So all I have to do is go into that court, ask for permission to appear, and I’m Allowed in. The benefit here is that this is such a highly specific area of law.
Ronald Chapman II
If somebody is a physician charged with over prescribing, or you’re a cardiothoracic surgeon at a hospital under a false claims act case for over billing or doing too many procedures, you don’t just want to go to the attorney who did your will or your trust. And there may not be a lot of specialists in your certain area. So I’m able to travel in and take care of those cases. And I’d say about 80% of my cases are out of a state in which I practice in.
Terri
Okay. So the key being federal, though. If it was a state issue, then you couldn’t do that unless you were.
Ronald Chapman II
Licensed in state issues. I partner with somebody local, even on federal issues, I usually do as well. But if somebody comes to me with a state licensing case, regulatory case, I am likely to partner with somebody while controlling the overall investigation. That being said, when it’s like DEA administrative or CMS type cases, any attorney in the United States can handle cases against federal government agencies wherever they’re located.
Terri
Okay, that makes sense. Yeah. If they want the expert. And then you just partner if it’s a state thing. So that’s good. That opens up your availability to anybody, anywhere to get that expertise. Yeah, yeah. In the article that I mentioned earlier, there’s a couple of sentences in there that states the solution, like many in healthcare, is simple, yet something most don’t want to face. Proactively create a robust compliance system that preemptively addresses the legal arguments prosecutors and regulators use against physicians. And this resonated completely with me. This is essentially what I preach at healthcare facilities. What you hear at the conferences, you don’t think you have a problem, but we’ll tell you there’s a problem. So you need to find it, look for it, fix it, and become compliant. So let’s talk about this.
Terri
Do you find that a large percentage of the time physicians end up in trouble with a regulatory body because they were ignorant of the requirements or because they knew what they were, but they willfully ignored it?
Ronald Chapman II
That’s always the tough question. How many times do they have to tell you live in a flood zone before you’re responsible for not taking precautions, getting the right insurance, doing whatever you need to do to avoid damage, putting your house on stilts, whatever it might be? It’s the same analysis there. Right. We know that, we work in a highly regulated industry. We know that compliance plans and risk assessments are required. A lot of the board, certification entities and a lot of the professional groups out there are preaching this time and time again. You and I go and speak at conferences and we tell people, get your compliance plan done. But there’s a disconnect. The entities, and I know that you represent a lot of larger entities and you work with them. They know that they need this stuff.
Ronald Chapman II
They invest a lot in it because they have a lot to protect. They’ve got board members and they’ve got shareholders and they have a well resourced compliance division or maybe they even outsource some of those tasks, but they devote a certain amount to it. And this is one of the things that CMS tells us to do. And I actually align with this guidance quite a bit. You need to make sure that your compliance function is well resourced, proportional to the type of risk that you have and the type of organization that you have. Those are the two things that we look at. We did this in the military too. If we’re doing a dangerous action and there can be a severe loss and there’s a high probability of that’s a very risky activity. More compliance is necessary. We’re doing something not that dangerous.
Ronald Chapman II
We don’t have to worry about it so much. I mean, you just have to have basic compliance functions and that’s where we have to go. But here’s the disconnect. The large entities know they need it and they usually resource it well enough, but they could always do a little bit better. I usually see the smaller and mid sized entities, they have a hard time because at what point they look at themselves and say, I’m big enough where I need to do this. And here’s my message to those folks, the smaller and midsize entities. You must have compliance and then every single person in your entity should be a compliance officer.
Ronald Chapman II
Everybody needs to be trained, not formally tapped as one, but trained on compliance, thinking about compliance, putting that as part of their goal and the focus for their entity, reporting appropriately and keeping communication open so that they can make sure that they do compliance very well. And when people are trained and that’s integrated into your function, what you find is that those problems don’t fester. They usually get identified very quickly and the right people can be called to get on top of the solution. Even if that’s a small practice that notices some discrepancy. They let the owner know. The owner calls the lawyer does the right thing. That’s the process that we want to play out. But there is a disconnect with Some of those smaller entities on helping them understand that’s exactly what they need.
Terri
Yeah, I love that. I love that you can translate that into anything. You know, medication safety, patient safety, compliance. You just, you’re always looking and it’s like, wait a minute, that doesn’t look right and you need to say something. But so many people just don’t. I don’t know if it’s a. The, they just don’t have that trait or it’s a work ethic thing or it’s a, it’s not my job, whatever thing.
Ronald Chapman II
Yeah. But yeah, and I’ll jump in with this as well. The very recent event, there was a plane crash. I don’t know when this will air, but last night there was a plane crash over Washington D.C. A very, a very busy airport that I’ve flown in and out of many times. And one of the. I used to work on a Marine Corps air base. And compliance is a huge important aspect of the airline industry as well as of military pilots. And I learned from them very early on the types of things that they do. Eventually we in hospitals started to use certain compliance measures similar to what they do on an airline to make sure that they’re doing the right things by having that pause, that timeout, double checking to make sure we don’t do a wrong site surgery.
Ronald Chapman II
All of these things are compliance. And so people find it pretty easy to do these things when they relate to the specific job that they do. Hey, let’s stop and mark the location of the surgery so that we get it right. A pilot might stop and make sure
that they communicate with the co pilot to ensure this checklist has been gone through. Those pauses are great, but nobody does the pauses for the type of administrative or bureaucratic compliance that we normally see in this industry as well, like the billing and coding compliance, making sure that we’re appropriately documenting. We don’t always see those same types of pauses. And so I think we just need to tweak the way we think about this a little bit differently.
Terri
Yeah, good point. We find those of us in the healthcare facilities that are, you know, reading the DEA, CFRs and regulations and stuff, sometimes they can be a bit vague or a bit like, really, how do you expect us to comply with that? And they’re vague. They don’t really give you great direction, but you know that if you do something wrong according to what they think. Right. There seems to be a little bit of independent. The inspector, the investigator might hold you a little bit more accountable or translate it A little bit differently. If you had gotten a different inspector, that might not have been the result, right?
Ronald Chapman II
Yep.
Terri
Do you find that to be the case as well? And then how do you typically handle that when you’re representing a client?
Ronald Chapman II
Yeah, unfortunately, all the time. It’s almost as if these guidelines, regulations were written to be so vague so that the people who are enforcing them can decide when they want to enforce them and when they don’t want to enforce them. And that’s really what’s happening in government. There’s this theory in the law called executive overreach, where the executive becomes so powerful because they write vague regulations and then they get to choose and be the judge, jury and the executioner. A lot of people facing administrative action from their licensing board probably feel this way. It’s a vague regulation, difficult to deal with, difficult to understand. I do my best, but there’s something I missed and I really can’t get all of this stuff right. It feels very suffocating and you feel trapped and.
Ronald Chapman II
And it’s almost enough to make you not want to be in the health profession at all. But there are some words that I can say that might bring some comfort in that realm. The entities that I see get criminally charged or the entities that I see get sued by the federal government or even face exclusion action from cms, those sorts of very serious type of actions that we see, we don’t usually see those for minor non compliance. We usually see those. Prosecutors are generally pretty good about their selection of what cases to take forward. I may disagree with their theory, but there has been some consistency over time in what they’ve pursued. And what they will normally pursue are those cases that are outliers where people are making a significant amount of money off of doing something that was a bit over the line.
Ronald Chapman II
Usually they look for more egregious conduct and they look for some sort of profit or motive or some sort of misconduct. I’ll give you an example. If you accident EM codes are pretty easy to pick off in this type of area because they’ve been so heavily prosecuted. If you up code a few 9921 threes to 99214s over the course of a year and you’ve done that five or six times, nobody really is coming after you. That’s not something that they’re looking for. But if you are statistically significant in your deviation from what your peers do in terms of that type of code and you’re completely tone deaf as to what most people are billing for and your documentation Is not that complete.
Ronald Chapman II
It’s going to start to give the appearance that you are trying to make a lot of money off of upcoding as opposed to maybe selecting the wrong code because of a few discrepancies. And so when it comes to that fuzzy guidance, hey, it’s really hard to figure out these evaluation and management codes that can be somewhat resolved by trying to get it right and having a good compliance plan. Meaning let’s look over the codes that our providers are billing and see if they deviate from their peers. That will tell us whether or not we have an issue. We can pursue it, we can modify it, and we can take care of it before the federal government has to do that for us.
Terri
Okay, yeah, I know. I’ve heard you talk about a lot of your cases have been physicians that the DEA has come after for over prescribing, or the DEA thinks they are over prescribing in pill mills. And there certainly are those cases. But are you finding that there are legitimate physicians that are being targeted? And if so, is this regulators using loopholes, just looking to prosecute people? They really, they don’t have an understanding of what a medical practice actually looks like and what is legitimate. I mean, break that down a little bit because I’d like to think they’re not going after people that, you know, are just doing paper documentation problems versus really are pill mills.
Ronald Chapman II
That, that is really the question, honestly. So, yes, I’ve represented a lot of physicians and other healthcare professionals, nurse practitioners, PAs, as well as some entities who are facing allegations related to drug trafficking. And when the federal government decides to charge a provider, a prescriber for this type offense, they charge them with the same thing that you would charge a crack dealer with. And they use the same laws. It’s kind of a blunt force instrument. Either you are practicing medicine or you’re a drug dealer. That’s what the jury has to decide. And so when prosecutors start to go down that road of prosecuting a case like this, it should be very glaring that the provider, the prescriber, is not practicing medicine in order to move forward with a prosecution. Unfortunately, that’s not the case.
Ronald Chapman II
And there’s a few cases near and dear to my heart of people that are just absolutely wonderful human beings. They wouldn’t mind me talking about them today. Dr. Leslie Pompey was a pain management physician. I believe he practiced out of the Cleveland Clinic, opened up his own practice in the southern part of Michigan, very close to the border. We all know Ohio had a really Solid crackdown on all prescribing. Some patients moved north to seek his care. Some Michigan patients also sought his care. A local task force got it in their minds that they would try to shut down the doctor who was prescribing this type of medication. Dr. Pompey had a very busy practice. He fought for three years and was ultimately acquitted of every single count after we acquitted him at trial. Got him acquitted at trial.
Ronald Chapman II
But one notable thing about Dr. Pompey’s case was I indicated to his staff, his wonderful staff, that I wanted to talk to some of the patients to see what they were going through and what their pain was like and how Dr. Pompey had treated them. And they put the word out. And I had 175 people show up at his office that day, ready to talk to me throughout the day. Now, it’s for an interventional pain management physician. It’s possible for them to have 3,000 patients. That would not be strange. So 175 out of 3,000 who would. Who would come to his office specifically to talk to me, even though they are suffering from painful conditions. And this was the middle of winter. I mean, it was just.
Ronald Chapman II
It was enough to make you shed a tear for this man and what he was going through, but also for what his patients were going through. Unfortunately, prosecutions have been related to the numbers. How many patients are being seen, what type of controlled substances? Let’s add up these facts and figures and then make assumptions about a doctor based on the raw data. But what really may be underneath that data is an untreated pain management population where there was nobody compassionate enough to take care of those people. Dr. Kendall Hansen out of Covington, Kentucky, same story. Full acquittal after trial. One of his patients had a disease that they essentially called a suicide disease. Some of your listeners may have. May have heard of it before.
Ronald Chapman II
I can’t recall the actual name of it, but she took the witness stand, and she had two canes that she had to use to get in the witness stand. And she said, I was cut off by my doctor for an inconsistent urine drug screen related to a false positive. I went to Dr. Hansen’s office. He found out that false positive was related to a metabolite issue with another drug that I was taking, and he decided to treat me. I wouldn’t be here today if it wasn’t for this man and his compassion. The DEA wants us to discharge that patient and not treat them anymore. Dr. Hansen decided to do that. The jury saw the compassion. So where’s the line drawn. That’s tough because every prosecutor’s office is different.
Ronald Chapman II
I would say that if you’re in the Appalachian region, you’ve got prosecutors there who are very heavy handed in going after anybody who steps outside of a certain morphine milligram equivalent. Alabama doctor. There’s a few doctors down there that have been prosecuted for deviating from the state morphine milligram equivalent levels that have been incorporated into their guidance. It’s difficult to say where the line is drawn. But I would say if there is one thing that every provider could do better in order to avoid prosecution, it would be document. We say it all the time. We get tired of saying it. But I can’t tell you how many times I see cookie cutter documentation notes repeated visit after visit. And one thing I say, and I’ll say it on this talk, because I say it at pain week, I say it at every other talk.
Ronald Chapman II
Tell us in a very human way how that patient is doing today and how the medication helps them. Just give me one sentence. I was able to get out of bed today and take care of my children. That’s good. We need to see function and improvement. And if we show that, we’re probably going to be okay.
Terri
Right? Okay. Is there any recourse for these physicians? I mean, three years going through this. I’m sure there was some damage done. Financial for sure, not to mention with the rest of his practice. But do they have any recourse to then go back and sue backwards?
Ronald Chapman II
Unfortunately, no. The federal government does a pretty good job of insulating itself from those unfortunate decisions that they make. And when they pursue people. There is something called the Hyde Amendment which would allow me to file a motion with a judge and ask for all of the legal fees to be returned to the person. That motion is a very. It doesn’t. It doesn’t win. Frequently states are easier to sue than the federal government. So if this happens with a state and somebody’s wrongfully accused, feel free to give me a call. I might be able to help out there. But suing the federal government is not something that has been done successfully. There are some exceptions to that.
Ronald Chapman II
Now, instead of dealing with trying to recoup all these fees, I would say every single one of those people that I defended, even if they were large acquittals, Dr. Lewis, Dr. Hansen, Dr. Pompey, Dr. Cusa, all of those cases, had I been able to get into that office a few months before they were ever investigated and help them, I guarantee they would not be in any trouble. Reason being some very simple compliance tweaks would have been able to help out and show that at least they were making an effort towards compliance, which often is enough to prevent some sort of serious action like that.
Terri
Sure. And that’s the perfect segue. I was going to just say, in addition to your law practice, you also have a consulting group. So tell us about that. What’s your typical client? What services do you offer?
Ronald Chapman II
We just rebranded as Safe Harbor. And the reason why it’s Safe harbor used to be Chapman Consulting Group. So you may have seen that out there. Two reasons. First, I want this practice to be more of a collection of very talented individuals who people out there can trust. It’s very hard when you have to contract with 15 different individuals to do 15 different jobs for your group. We are collecting them and we have them under the same roof. We have a very talented person who was with the DEA for 25 years in diversion, head of Pharmaceutical Diversion.
Ronald Chapman II
We have medical board investigators who’ve been with the medical boards, OIG investigators, lots of folks who can, we can sort of select off the shelf to create the right team for an internal investigation, which I hope we can talk about for the development of a compliance plan. And we also have very talented compliance officers. The reason why I did that is not for any other reason other than I really wanted to help out the Dr. Pompey’s, the Dr. Hansen’s, the Dr. Kuces. Before I ever had to defend them in a courtroom. I sat next to these people for years watching them suffer under the weight of a potential 20 year sentence of having their life ripped apart and all the legal fees and all of the court fees that they would have to pay for. And that’s a really unfortunate thing to see.
Ronald Chapman II
And when it comes down to it, a little bit of effort and resources provided just for compliance, it would have saved everything. Right now with our group, for somebody who’s contacted us before, they’ve been involved in any sort of investigation, we haven’t had anybody ever get in trouble. And the reason being we descend on their practice, we right the ship, we make sure that we take care of it, whether it’s a pharmacy, a small physician group practice, or even a larger institution, and we take care of it. But even better, when somebody picks up the phone to call us and says, hey Ron, I believe I have a nurse who’s diverting from me, our counts are off, or I think I have a pharmacy tech who’s diverting from the pharmacy, there might be a loss here.
Ronald Chapman II
We Know exactly what the federal government wants you to do in response to that and document it. And then we go ahead and take care of it. And if we need to make a report to the dea, we go ahead and do that. Those are the things that we’re able to handle for our continuing clients. It’s been great. It’s been very rewarding. It’s a lot more rewarding, honestly, than jumping into trial, which is something I love doing. But I love helping out practices.
Terri
Yeah. And it goes back to that. Proactively create a robust compliance system. You know, help them parse out those regulations that they know are there but they think maybe they’re doing it right. Or quite frankly, I don’t think people recognize how prescriptive they are in terms of you better be doing this. Because if there is one piece of information missing off of that two, two form or you know, whatever form, you’re in trouble. It’s like really, that was just a mistake. Well, it doesn’t matter. There’s no tolerance for those kinds of mistakes.
Ronald Chapman II
I’m glad you mentioned this because there is something that I brought with me from my time in the military that we use as part of our compliance, I hate to say checklist because it’s different for every entity but we use as part of our compliance program when we do a review, we don’t just sit down and talk to people after. And perhaps this is something for other compliance officers they may want to consider incorporating into their advice. We provide a document and it has three responses, three possible responses to any area that we look into. The first thing is sustain. We want to tell people what you are doing that is really good that you should continue to do because we don’t want you to get rid of that. Right? Yep.
Ronald Chapman II
Then one of the things that we may say is we make a recommendation that you modify this. But it’s a recommendation that’s a slight tweak that we think is a nice to have. Maybe that’s something where you’re going to have to incur some cost. Hey, we should, we think you should get a new EMR system. But we think that you can work with what you have right now. That’s like the sort of modify recommendation and then there are recommendations that you must absolutely modify or change. And that would be a change recommendation. That’s something that we feel that you’re non compliant with the law currently and you need to do that in order to get compliant. We take care of those change recommendations. First and then we work our way up the chain.
Ronald Chapman II
By the time the compliance plan has really been implemented, everything’s moving. You’re fully in compliance and we’ve trained the staff so that they can run the compliance plan on their own and it works out really well.
Terri
Yeah, no, that’s great. You mentioned when you were talking about investigations. So you will go on and do kind of like we call it a risk assessment or gap assessment or what have you for compliance but you also get involved investigations if somebody thinks there’s going something going on. So at what point, you know, I work with clients and they do this in house. Right. Some do better than others. But at what point would you feel it appropriate to call in a group like yours rather than handle it in house?
Ronald Chapman II
And that’s where the training needs to occur. So first, I think my kids probably dislike this fact about me the most out of anything that I do. But I absolutely love investigations. I love having a problem as unfortunate as it is.
Terri
Don’t lie to dad.
Ronald Chapman II
Right? Exactly. Oh, I can spot it coming a mile away. Just my experience in cross examining witnesses and seeing these types of issues puts me in a position where we can get to the truth very quickly and we document it in a way that is going to be ironclad, let’s just say so. So that’s the service that we provide. If somebody says we believe that we need an internal investigation and when we say internal investigation, let’s define that briefly. That is, that is when an entity says we would like to investigate ourselves. Why would you do that? CMS tells us why the federal government Chapter eight of the Sentencing Guidelines Manual which is often used as a compliance program guidance and the DOJ compliance guidance also says this.
Ronald Chapman II
When there’s a board and there’s a compliance plan, part of that compliance plan needs to be devoted to looking into suspected non compliance and then uniformly disciplining those involved, whether that’s somebody who’s in a leadership position or somebody down the chain, which means an external compliance investigation, which we would call an internal investigation because we’re investigating ourselves, should be done and oftentimes it should be independent. Reason why it’s independent is that we want to make sure that we can show anybody who looks at it later hey, we are going to allow them access to everything. And these people have no allegiances to who’s on the board or who’s in a leadership position.
This is why it may not be the best idea to have maybe a nurse who’s in a supervisory position over another nurse investigate one of their own employees.
Ronald Chapman II
That can be a difficult thing to do. Maybe the administrator of a nursing home I often see doing the investigation. They have a lot of relationships. Maybe we don’t want to use them. We should use somebody external. So when. And the question really was when should we reach out and have this type of investigation done? Generally that relates to. We would, we would do an investigation like this when it is something that triggers a mandatory reporting requirement. We can look at JCO guidance for this. I think that’s pretty good for those entities that have to adhere to jco. Would your listeners be pretty familiar with the Joint Commission? You have sentinel events. Those are things that would often need to have some sort of internal investigation conducted.
Ronald Chapman II
Anything that would require reporting to the dea, significant theft or loss or any issue where management feels this is a little too hot to handle is potentially a PR issue or a significant reporting issue. But, but here’s the thing. If you have a very. This is where the training needs to occur. If you have a well trained compliance officer and supervisors who are very well trained in compliance and we trust them to make the judgment call on what they should investigate themselves or what they should send up the chain, then we’ve done 90% of the job right there.
Ronald Chapman II
Because eventually that information will get to my entity and we will say, okay, we are going to get a statistician, we’re going to get somebody like you who can look into the data of the, the dispensing data to see if something needs to be conducted and then we will make sure that we document that investigation. One thing I’ll add is often entities think that they can go at it alone for a couple of reasons. They may not understand the importance of properly documenting it. They may already believe they know who’s responsible and they want to just go after it. I will tell you. And were talking pre show. There are a number of cases where I’ve represented nurses and other healthcare professionals who were investigated by their own entity and I’ve defended them.
Ronald Chapman II
And while those individuals very well may have engaged in the type of diversion that they were accused of, the case wasn’t solid enough because it wasn’t collected by people who knew how to do this type of investigation. And ultimately those folks were not held responsible. I wouldn’t comment on the guilt or innocence of any of my individual clients. But I would say that if you want the right people to be held responsible, get the right investigators so that you can make sure that you make a good call.
Terri
Right? Yeah. And that all makes sense. And I guess they could get the right investigators within their entity, but they’ve got to make sure that they are qualified, they’re not biased. I mean, really, too many of them. You talk about the nurse manager. Too many of them involve the nurse manager and depend on them to say, yeah, I’m not concerned, or, okay, I’ll talk to. To them. I’ve been in an interviewing a staff member, and the manager is in the room because that’s what that hospital’s process was, you know, and even against my, like, don’t do that. But there they were, and the manager was answering for the employee. Well, isn’t it. Because you. And I’m just like, oh, my goodness, could we just let this nurse answer for themselves, please? But, yeah, so that would be a. Yeah.
Terri
Not doing a great job on the inside.
Ronald Chapman II
That’s right.
Terri
But if you can train and if it’s bias and you have your own. A lot of. A lot of hospitals now have former law enforcement type of people that have a different mindset to. To that investigation piece of it.
Ronald Chapman II
They can work. They can work very well. Hopefully at some point there’s counsel in the chain. To the point that you just raised one issue that I commonly see. I’ll just throw it out there. If. If those out there who are listening say, hey, we do investigations and we do it well. My question would be, do you know what an Upjohn warning is? Right. That’s a type of
warning that needs to be delivered to an employee before we ask them questions in the presence of counselor during an investigation to make sure that they understand that these answers are for the purposes of their employment. And there’s no representation on behalf of the entity that they are protected or that those statements are somehow confidential.
Ronald Chapman II
That’s one of probably a thousand different things that I’m thinking about and applying that folks may not have the training to apply and do. And that could be a very important thing later on.
Terri
Yeah, I do not. I’ve never heard that Upjohn warning. I will tell you, though, it is interesting. I’ve had a lawyer on the podcast, another lawyer on the podcast that. That represents nurses and other healthcare professionals. And, you know, her take on it is, don’t say a word. You know, you call me. Whereas if you’re just internally within the hospital, right. We’re like, just tell me. You know, we’ll help you get the help that you need. And so it’s a whole different dichotomy. Depending on who is leading, who is in the room. And then when you talk to, you know, the legal people, it’s like, oh, I didn’t think about it. That’s that way.
Ronald Chapman II
Yeah. So the Americans with Disabilities act is an important fact here when we’re dealing with addiction. Right. You are a protected class if you have an addiction and you report an addiction to your provider. So one of the strategies that somebody could use when faced with this is seek some cover under the Americans with Disabilities act for this type of issue. And that can really muddy up the water. So you have employment law coming into play. You’ve got potential regulators and their rules coming into play. It is a very complicated space. By no means am I saying every misconduct out there needs to rise to the level of, let’s get a SWAT team in here to figure things out and start dusting for fingerprints. We’re very good at making sure that the response is tailored.
Ronald Chapman II
Oftentimes, I will tell my client, feel free to move forward with this, but I’m going to give you a little guidance before you do, so that we can train your staff while they’re going through this process of investigating and they can learn how to do it efficiently themselves.
Terri
Yeah, that makes sense. You talk about the different kinds of laws, employment law, and all that type of stuff. So here’s. I’m interested on your thoughts on this. If there’s an investigation going on, and let’s say that the data looks pretty clear, and I’ll tell you, I’ve learned over the years, right? It used to be like, oh, guilty. And then you have a conversation and you get a little bit more information. It’s like, oh, okay, that’s a reasonable explanation. Let’s go back and relook at this. Right. But still, even with that experience, there are some audits that I conduct and data without even talking to the person, that it’s like, there’s just no other way that this can go. I mean, this person has an issue or they’re taking it for somebody else. It’s pretty clear diversion.
Terri
Just you can tell by the pattern and the numbers and such. So if you’ve identified somebody during this investigation, you’re at the initial stages, but the data looks very compelling. And let’s say that you know that this person moonlights and works within the community somewhere else, and you just know that they pick up hours at this other entity.
Ronald Chapman II
Yep.
Terri
From a, you know, an HR perspective, from a innocent until proven guilty perspective, from a patient safety perspective, what would be your recommendation? On notifying, notifying, backdoor notifying the other place we’re looking at this person, we have high reason to suspect. Can you just not say a word?
Ronald Chapman II
Oh, that’s a tough call. I don’t want to give you the lawyer answer here. I’m really going to avoid it. But the first answer would be that it’s going to be a case by case situation.
Terri
Absolutely.
Ronald Chapman II
But there is one thing that you have that can sort of save you from having to make that call. Most states have a reporting requirement that would require you to report to a licensing board if you suspected that any licensed individual was a threat to the public health, safety and welfare or had violated the public health code. Michigan has it, Florida has it, California has it. I think every state does. And so the thing that you probably could do there is if that, if you had enough data to suggest that this person was responsible, and I’ll talk about the issues with data in a second.
Ronald Chapman II
But if, let’s just assume you had enough to suspect that this person was responsible, you could make that report to the licensing board and get them involved and they would take care of a summary suspension if that needed to happen, of the ability, the individual’s ability to practice. They could take care of, you know, any additional action and avoid any sort of defamatory or false statement lawsuits that might come back at the employer. If you happen to allege that somebody did something that they didn’t do. And here’s the danger of reaching out or sort of a backdoor notification to another entity if you say that somebody might have been responsible for something, but you end up being wrong, the statement false.
Ronald Chapman II
You don’t have to prove always malice when it comes to defamation, which means that this person, if they were to sue your entity, let’s say you work for a hospital, you called another hospital in which the person was moonlighting, this person could sue the hospital that they worked at in an employment case and they may add you on a defamation count in addition to other allegations related to the wrongful termination or whatever it might be. As a result, you end up having a situation where you’ve got to defend a lawsuit because you tried to do something to protect the public health, safety and welfare. But your reports, usually this is a state specific thing, but your reports to public health individuals are normally privileged. Those cannot be the subject for the most part.
Ronald Chapman II
And you want to look at specific states, but usually they’re not going to be subject to the type of defamation lawsuit. You would have some sort of, that protects you significantly, and it allows you to make the appropriate report and do the investigation. Let me answer the data part, because I have seen more people’s lives interrupted by improper interpretations of data than just about anything else. Right. It’s something that you work heavily. And I think anybody who’s investigating, who primarily looks at data needs to stop and really be very clear about what data represents. It does not represent causation. Right. It represents correlation. In most instances, it might show that this person maybe even is the most likely. But without any other evidence, without specific corroborating evidence, I would never raise an allegation solely based on data that is aberrant from others.
Ronald Chapman II
That is what the federal government has been doing to healthcare professionals when they evaluate billing and coding and False Claims act issues, or when they evaluate overprescribing issues. And as a result of that approach, just because we have all this data and it’s an easy way to figure things out, they’ve taken a lot of actions that they probably should have stopped and thought about beforehand. The problem with data is not just that it can be unreliable, but it gets people entrenched into a way of thinking that causes them to then target somebody else just to confirm their original belief. I wrote a book. It’s called. This is actually my second book. It’s called Truth and Persuasion in a Digital Revolution. And it’s doing very well. It’s number one bestseller on Amazon.
Ronald Chapman II
But one of the chapters is about the heuristics and biases that we normally have and operate with. And one of those things is called a confirmation bias that was developed by some behavioral economists, I think Daniel Kahneman and then Tversky was his partner. And I write about it extensively. Confirmation bias causes us to believe things that confirm the assumptions that we’ve already made. And if we believe the data and we make those assumptions, we’re then going to go through the investigation only believing the things that confirm the original data picture. So I’m always very careful with who I show it to.
Terri
Yeah, 100% agree with that. And that is one of the problems I’ve seen with some of the diversion software. It’s really easy to, you know, grasp onto one thing and then keep going down that path as opposed to broadening, you know, your look and search. And when I say data that is so clear, we’re talking about pulling a med without an order, wasting it as a full dose. And this particular med, there was no clinical indication, this patient that walked in for whatever it was that they
needed, that needed this high powered med, and it’s done multiple times. And, you know, in a couple of cases, it was pulled out of the automated dispensing machine two minutes after the patient was discharged. You know what I mean? And it’s the same drug. Right. It’s like, okay, you know, we have a problem here.
Terri
That’s so, that kind of data that is so clear, that can be.
Ronald Chapman II
That can be quite convincing data. But again, you’re going to have cameras where you can go and look at, maybe look at those wastes or see the movements and location. Yeah, that would be nice to have. And you may have witnesses. And, you know, the idea that we used to see this a lot, I’m sure you see it. Ativan was a very common one that was diverted. I just saw so many Ativan cases and then Remy Fentanyl.
Ronald Chapman II
I had clients alleged to be diverting Remy Fentanyl, which was kind of surprising to me because some of these drugs, if you’re actively taking the doses that people have believed during an investigation that an individual was actually consuming and there was really no way to transport it out of the facility in some cases, and I know tolerance is a real thing, but in some cases it just would have been impossible for this person to really be ingesting this. So you’re wondering, why aren’t we seeing signs of inebriation and those sorts of issues? So I’ve seen cases where the data just looks spot on, but sometimes there’s not much else to support it.
Terri
Yeah. And you find out other things, and that’s true. I mean, I’ve seen some, that there’s, you know, a lack of waste. It’s like, where. I mean, it’s literally just missing. And so my thought is like, okay, either nobody’s been looking and this person is just getting the farm, or they’re just so sloppy and nobody’s been looking and they’re just not accounting for things. And so, yeah, you need to dig in a little bit more because some might be willing to just say, oh my gosh, look at all this. It’s gone. They’re gone. They have a problem, we’re reporting them. But it might just be. Yeah. You know, and I want to go back to notifying the licensing board, which I think, you know, that is the appropriate pathway to go.
Terri
But in my experience, I find that they’re very far behind on taking action.
Ronald Chapman II
Yeah.
Terri
And so, you know, it could be two years later before they do something.
Ronald Chapman II
Yep. In, in my state, Michigan, in fact, we had A pretty significant lawsuit related to it because they did it too much. But in my state, if there is a credible allegation that somebody is addicted, they can be recommended for admission into a treatment program, a PHP type program. The Michigan program was quite aggressive. I don’t agree with everything they did. I’m not saying that people should immediately call up these places and seek help. That’s a case by case decision. But oftentimes for those employees who wanted to voluntarily get into a program like that was often a way that they could avoid having severe consequences for their actions, even though the state may behind investigating sometimes those offers. And sometimes offering voluntarily voluntary enrollment into a program like that can be a way to save a lot of people a lot of hassle.
Ronald Chapman II
And if somebody chooses not to go down that road, then that should also be considered as part of the overall issue that it was recommended. You know, they drug tested positive, there was a meeting, there was discrepancy in the numbers. There’s some camera footage showing, perhaps they’re maybe going into charts of people that they weren’t actively treating at the time or all sorts of these things that you see day in and day out. And then you sit down with them and say, we think you should get a little bit of help. And they refuse. Well, that helps you with your guidance there. But you’re correct. The states can be very much behind sometimes.
Terri
Yeah, well, and I think more and more institutions are going to that offering that, you know, if you admit that you need help, then go ahead and get help. And, you know, but then I think on the lawyer side, they’re like, don’t admit to anything, don’t do anything. But it’s like, but this is what the facility is offering them as kind of a way out is, you know, we think you’ve been doing something, you’re caught, the gig is up. If you’ll get help, then this will go a completely different direction. Right. Than if you don’t.
Ronald Chapman II
This is, this is a very tough thing because ideally we want those places to be places of refuge and safety for somebody who has an addiction and wants to get better. A nurse who’s had a lot of hardships over a career, a very painful back, maybe some surgery, wants to get back to work, develops an addiction. We’ve seen this story over and over again. We want them to be able to admit to it, get into treatment, and then come back as a full fledged nurse the way that they were before. Not all of the programs actually do that. And Sometimes they can be more punitive. So the first thing we need to do is make sure these programs aren’t punitive and they are focused on recovery and that the employer is actually interested in support.
Ronald Chapman II
But then to the lawyers that say, don’t admit to anything. If somebody were to come in my office, especially back when I represented a lot of nurses with these sorts of issues and said, hey, I’m currently. And I would get this call a lot, I was sent home and I drug tested. I think it’s going to be positive. What should I do? My response isn’t we should refuse to cooperate, blah, blah, that we know where that goes. The drug test is positive. Maybe they even ask for hair later. We’ve got termination and notification to the board, a board investigation and suspension. Sometimes the right thing to do is to start mitigating.
Ronald Chapman II
Mitigating means trying to get some help for their addiction, getting them into treatment, seeking PHP and creating a deal with management where they go in and get that, especially if they’re a good employee. So I am not the type of lawyer that would recommend, don’t say anything, don’t admit to anything. I would just want those discussions to happen with legal advice so that they could be informed. Informed about that they’re making.
Terri
Right? Yeah. Ultimately, we want everyone to be kept safe. Right? Them and the patients.
Ronald Chapman II
Yes, absolutely.
Terri
So, yeah. Great. Well, this is a great discussion. Thank you so much for your time. I’ve really enjoyed it.
Ronald Chapman II
Absolutely. I enjoyed it as well. If anybody wants to find me safe hg, that’s safe harbor group. Safe hg.com is the. The website. I also am an attorney with Chapman Law Group. That’s just Chapman law group.com and then the book that I referenced, you can just go on Amazon and type in Truth and Persuasion. If anybody wants to check that out. I think you can get an ebook, paperback or even hardcover if you like. But thank you so much for having me. I appreciate the discussion.
Terri
Thank you. Thank you, Ron.
Ronald Chapman II
Yeah.
