Reporting Quality Concerns: Reality at 3:00 A.M.
By:
David S. Barmak, JD
I am a compliance attorney. At 3:00 a.m. I in-serviced a group of certified nursing assistants (CNAs) at a skilled nursing facility. The topic was the facility’s fraud and abuse compliance program and the policy of non-retaliation for complaints about substandard quality of care. After the in-service, Mary stayed behind and asked if we could talk. When the others had left and I closed the door, she broke down into tears.
Q: What are you so upset about?
A: I can’t take it anymore. I’m sick to my stomach. Every night when I start my shift I find two or three of my residents wet from head to toe. They’ve been lying in bed in their own urine for hours. A couple of the CNAs on the shift before me refuse to properly care for my residents.
Q: Why would they do that?
A: They come here for a paycheck and don’t care about my residents.
Q: Have you spoken with them?
A: Yes. They just don’t care.
Q: Have you informed your nurse?
A: I have and she says she’ll look into it, but then she never does anything about it.
Q: Why won’t she do anything?
A: She’s afraid of these CNAs.
Q: Physically afraid?
A: Yes. She’s afraid her car will be keyed.
Q: What about talking to the nurse supervisor?
A: I can’t. If I complain, then these CNAs will get me in trouble—at work and at home—because they know where I live. My nurse won’t help me. I can’t afford to lose my job. I can’t afford to get into trouble. I’m so upset and I don’t know what to do. I’ve got to help those poor people.
Fortunately, after a lot of persuasion and assurances of anonymity, I was able to set up a telephone conference call for this CNA, the facility’s Compliance and Ethics Officer, and me. The Compliance and Ethics Officer, who is a nurse, was able to resolve this situation, which resulted in improved quality of care for the residents, the firing of the CNAs who were providing substandard quality of care, and the disciplining of the nurse who was unresponsive to the CNA’s complaints.
It is indisputable that skilled nursing facilities must develop and implement compliance and ethics programs to safeguard the facilities from government allegations of fraud and abuse and to show good faith efforts to adhere to federal and state laws and regulations. The Office of the Inspector General focuses primarily on quality of care issues when it comes to investigating fraud and abuse in skilled nursing facilities. When developing and implementing compliance and ethics programs, I am satisfied that management regularly conveys to its clinical staff that management will not retaliate against employees who complain about substandard quality of care. Unfortunately, what is sometimes overlooked by management is the need to protect employees who speak up from co-workers against whom they have made their complaints. Facilities must stress to their supervisors and managers that while it is critical to encourage and to not retaliate against staff who “blow the whistle” on substandard quality of care, it is most important that management protect whistleblowing employees from the staff against whom the whistle was blown.
I realize that every skilled nursing facility claims, “we do not retaliate” and “we encourage our staff to voice their concerns to management”; however, having spent hundreds of hours in-servicing third-shift CNAs on various elements of compliance and ethics programs, the same response is too often heard from those CNAs: “We think very highly of the owner, administrator, Director of Nursing, and you. We believe all of you want to do the right thing by us. We believe in the goals of the compliance and ethics program, and we do our best to follow what you teach us in order to protect our certifications, our residents, and our facility. However, we are very, very reluctant to blow the whistle on our second-shift CNA colleagues who do not provide good quality of care for our residents.
“If we complain about them, they will retaliate against us, and our nurse will not protect us. It doesn’t matter what the owner, administrator, Director of Nursing, and you say. Our only reality at 3:00 a.m. involves our immediate floor nurse and our fellow CNAs. This is very upsetting for us because we care about our residents, but we also have to get along with our colleagues.”
Whistleblowing by one CNA against another requires management protection through enforcement and discipline. A lack of such protection results in a fear of retaliation by fellow CNAs. Rather than risk such retaliation, a potential whistleblower finds it safer to say nothing, resulting in continued substandard quality of care for the residents.
How do you sell the most important message from your compliance and ethics program—that your facility encourages disclosure and has a zero tolerance for retaliation by all employees on all shifts? It’s a message that all staff readily agree should be supported and enforced; however, the reality is that unless a facility can ensure that all of its nursing staff are willing to fully support disclosure, CNAs may not come forward with their real concerns. A CNA’s reality is not always determined by management’s policies and procedures or what the compliance attorney says about zero tolerance. Very often, a CNA’s reality is dictated by her colleagues and her floor nurse. Zero tolerance is nothing more than a concept unless every nurse understands, believes, and is willing to enforce the concept in order to encourage every CNA to express their concerns without fear of retaliation from either nursing or fellow CNAs. To me, a compliance and ethics program is only as effective as the real protection it affords a facility’s CNAs if and when they are faced with the decision to blow the whistle at 3:00 a.m.
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