All healthcare organizations should maintain an emphasis on compliance not on an episodic basis (e.g., in response to an enforcement-related development). Rather, an institutional commitment to compliance should be an integral part of an organization’s culture, with appropriate resources and leadership support.
In connection, it is instructive to revisit the principles of the DOJ’s ‘Yates Memo”. In September 2015, the Department of Justice (DOJ) released the “Yates Memo”, which enumerates steps the DOJ will take “to strengthen our pursuit of individual corporate wrongdoing.”
Six “key steps” outlined thereunder are as follows:
- In order to qualify for cooperation credit, corporations must provide to the DOJ any details germane to the individuals responsible for the misconduct.
- Criminal and civil corporate investigations should focus on individuals from the inception of the investigations.
- Criminal and civil attorneys handling corporate investigations should be in routine communication with one another.
- Absent extraordinary circumstances or approved departmental policy, the Department will not release culpable individuals from civil or criminal liability when resolving a matter with a corporation.
- Department attorneys should not resolve matters with a corporation without a clear plan to resolve related individual cases, and should memorialize any declinations as to individuals in such cases.
- Civil attorneys should consistently focus on individuals, as well as the company, and evaluate whether to bring suit against an individual based on considerations beyond that individual’s ability to pay.
These steps promote self-investigation by healthcare organizations, which could potentially strain the relationship between healthcare organizations, executives, and law firms. Rising numbers of fraud investigations and charges further elevate these tensions, with the Medicare Fraud Strike Force (which is designed to prevent and combats healthcare fraud, waste, and abuse) recently charging 301 suspects in the largest takedown in their history. This highlights the crucial need of healthcare organizations to ensure that they maintain robust compliance programs.
For further clarification regarding the above, please contact Adrienne Dresevic, Esq., at email@example.com, or Carey Kalmowitz, Esq., at firstname.lastname@example.org, or alternatively, please reach them at our offices by calling (248) 996-8510 or (212) 734-0128.