OIG and U.S. Sentencing Commission: Effective Compliance Programs Depend on the Culture of the Organization

A Professionally Developed, Independently Administered Survey Can Provide Useful Data on Compliance Effectiveness

Federal government compliance guidelines and guidance emphasize the importance of culture. The U.S. Sentencing Commission explicitly recognized the significance of “culture” in its 2004 “Amendments to the Federal Sentencing Guidelines,” stating that businesses must “promote an organizational culture that encourages ethical conduct and a commitment to compliance with the law.” The U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) compliance program guidance for hospitals states that “fundamentally, compliance efforts are designed to establish a culture within a hospital that promotes prevention, detection, and resolution of instances of conduct that do not conform to Federal and State law, and Federal, State and private payor health care program requirements, as well as the hospital’s ethical and business policies.” Determining the compliance culture of the organization can go a long way to evidencing the effectiveness of the compliance program.

The OIG’s 2005 “Supplemental Compliance Program Guidance for Hospitals” suggests a connection between employee attitudes and compliance program success: “Hospitals with an organizational culture that values compliance are more likely to have effective compliance programs and, thus, are better able to prevent, detect and correct problems.” The assumption from all this advice is that organizations that couple a strong ethical culture with a well-implemented compliance program are likely to be the most effective and have a lower risk of wrongdoing. The big question for the compliance officer is how to measure the compliance culture.

Compliance Culture

Executive leadership establishes rules and standards of conduct to promote governing how the workforce should comply with a system of shared rules, values, and beliefs. These rules of behavior are set forth in the code of conduct and policy documents. The culture of an organization impacts employee behavior and attitudes, including their level of commitment to the compliance program. Without a commitment to compliance by the workforce, written guidance may prove to be ineffective.

The problem for many organizations is that the culture may not embrace and support compliance, and all the written guidance falls to the wayside as just guidelines. For those operating in the health care sector, the highly regulated environment makes having a strong compliance culture a serious business. When it turns out that the workforce does not follow the directions provided, it creates vulnerabilities and potential liabilities. The culture of the organization could be used to foster and enhance compliance efforts or, conversely, might impede or render compliance efforts meaningless.

Using Culture Surveys to Measure Compliance

One of the best, but least utilized, tools for evaluating compliance program effectiveness is the use of employee surveys. Not just any surveys, but tools designed to provide reliable, valid, and credible results. They are advocated by many authorities for providing measurable evidence of how the compliance efforts of an organization are proceeding. The OIG in its “Compliance Program Guidance for Hospitals” noted that “as part of the review process, the compliance officer or reviewers should consider techniques such as … using questionnaires developed to solicit impressions of a broad cross-section of the hospital’s employees and staff.” In other compliance guidance documents, the OIG reinforced this by stating it “recommends that organizations should evaluate all elements of a compliance program through employee surveys…”

Culture surveys normally focus on the beliefs and values that guide the thinking and behavior of an organization’s members. Culture surveys can measure outcomes, or the “impact” of their compliance program activities and the extent to which individuals, coworkers, supervisors, and leaders demonstrate a commitment to compliance. This can be extremely useful for assessing the current state of the compliance climate or culture of an organization. These types of surveys usually are presented in a Likert Scale format, that is, a series of gradation of answers wherein respondents are asked whether they “Strongly Disagree,” “Disagree,” are “Neutral,” “Agree,” or “Strongly Agree” with the statement presented in each item. Results from the surveys may provide great insights into how effective the compliance program has been in changing and improving the compliance of an organization. They can signal compliance program strengths as well as

These types of surveys usually are presented in a Likert Scale format, that is, a series of gradation of answers wherein respondents are asked whether they “Strongly Disagree,” “Disagree,” are “Neutral,” “Agree,” or “Strongly Agree” with the statement presented in each item. Results from the surveys may provide great insights into how effective the compliance program has been in changing and improving the compliance of an organization. They can signal compliance program strengths as well as a potential weakness that may warrant attention. They also can (a) signal to employees that their opinions are valued; (b) underscore organization commitment to them as individuals; and (c) signal that their input is being used to make positive changes. These messages can have a powerful influence on increased compliance, reduced violations, and heightened integrity.

Developing and Conducting Surveys In-House

Creating a survey questionnaire can be done quickly; however, that does not mean it will have reliable, valid, and credible results. Internally developed and administered surveys may be questioned as to potential bias or reliability. It is also a mistake to not use a validated instrument that has been prepared by experts and tested. The cost of developing and using such a survey does not give a positive return on investment and may just be a waste of time and money. For those taking the survey as well as those who review and assess the results, there will always be the suspicion or concern that the instrument used might have been structured in a way that it rigs the results to benefit management. In such cases, employees cannot be expected to answer questions honestly, leading to results of little real value. If the survey is administered internally in the organization, there is a serious risk that respondents will be reluctant to answer the questions honestly, fearing repercussions should they answer too negatively.

10 Culture Survey Tips

1. Consider using a compliance culture survey to evidence compliance program effectiveness.
2. Use only surveys professionally developed and tested many times.
3. The vendor selected should be an expert in health care compliance.
4. Use only compliance culture surveys designed and administered to health care providers.
5. Don’t administer the survey internally, as it will be questioned in reliability.
6. The survey should be administered independently, warranting anonymity to respondents.
7. Expect the survey report to include a detailed analysis of results, not just numbers.
8. Use a vendor able to anchor results to a large database to benchmark against the universe.
9. Require survey vendor to attest and certify objectivity and independence in administration.
10. Consider conducting the same survey a couple years in the future to compare results.

Using Professionally Developed and Administered Surveys

A professionally developed and independently administered culture survey can provide powerful empirical evidence of compliance effectiveness for oversight committees and outside authorities. It is important that the instrument is validated and well tested across many organizations. Equally important is having the survey independently administered with the assurance that respondents will remain anonymous. Also, it is important that management does not have access to the questions prior to the conduct of the survey to avoid the risk of managers attempting to induce a favorable response from their staff. In today’s environment, using a Web-based survey method under the control of an independent vendor is probably the easiest and most reliable means to conduct a survey and can ensure protecting the identity of respondents. This is critical to avoid creating bias in the survey results.

Benchmarking Compliance Culture

The greatest value of a survey is being able to answer the big question: How do we rank against other organizations in our results? In short, they want to have their results benchmarked against others. Therefore, a survey that is not anchored in a large database makes the analysis of the results difficult in terms of how positive or negative individual questions are or, for that matter, the whole survey. The OIG cites benchmarking the effectiveness of the compliance program as being very important and suggests one way to do that is through surveying employees with the results providing evidence of how well they understand the operations of the compliance program and their obligations to it.