Don’t Exaggerate to Encourage Compliance

Don’t keep your doctor in the dark.

It can be tempting to exaggerate the risk of practice as a means to encourage compliance. But it is unwise. I don’t think I can count the number of times that over my career someone has said “Whatever you do, don’t tell my doctors” after hearing me describe how certain practices can be defended. In one recent example, we were discussing an organization’s policy of having physicians re-document portions of a note. The compliance person asked if the practice was required and I emphasized that it was not. Fearing the physicians would disregard the policy if they knew my opinion, the compliance person hoped I would keep it on the down low. While I understand that it can be unpleasant to argue with a physician about a compliance policy. Obfuscating the truth to avoid that challenge is a terrible idea.

I understand that in most organizations physicians have considerable power. They bring money into the system and they’re an essential part of healthcare delivery. It’s reasonable that they have power. Of course, that doesn’t mean that they should, or do, have unfettered power. Most organizations recognize the need to stay within the bounds of the law even if it frustrates the physicians. And I would add most physicians, even the argumentative ones, want to stay within the bounds of the law. They are simply trying to ascertain the lowest level of work they can perform while being compliant. And there’s nothing wrong with that. All of us should be trying to do as little work as possible to maximize the time you can spend doing something you enjoy like reading or storm chasing. Don’t begrudge a physician for trying to find the perfect balance of compliance and effort. 

While it might feel like keeping the doctor in the dark might give you an advantage in a debate, I would posit that the opposite is true. If a physician chooses to dispute a position taken by compliance, it’s likely some administrative person will need to choose sides. To win the argument in front of the decision-maker you will have to be persuasive. If you stake out a position that’s inconsistent with the law, and the physician can find an expert who demonstrates the fallacy of your position, your credibility is toast. By contrast, if you candidly explain: “The law would indeed allow this particular practice, but if we do it, there’s a very high likelihood we will be audited. During that audit, it’s likely you will lose at the first level. You would be able to obtain a good lawyer who could win the appeal but you will have to pay them. Even though we could choose to do it that way, I recommend we don’t.” The odds of winning the fight are much, much higher than if the physician can demonstrate that you have overstated the law to try to advance the position. That argument also might persuade the physician. 

There’s a second reason to take the honest approach. Arsonists can set fire to straw men. When you tell everyone that a particular practice is illegal, you’re inviting a whistleblower to challenge it. When a whistleblower can go to the government and say “My organization says this practice is illegal but they are doing it anyway,” You have waved the metaphorical red flag in front of the metaphorical bull. In the eyes of many regulators, violating an internal policy is akin to violating the law. When you establish a policy that’s more restrictive than the law, do so overtly, explaining to everyone involved that you’re choosing the cautious approach. When it comes to compliance, candor, and clarity, are superior to hyperbole and hysteria.

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