A top priority of the Department of Justice (DOJ) is battling corporate fraud and now the focus is on holding the individuals who carry out the wrongdoing accountable. The DOJ released a memorandum this month setting forth six key steps that should be taken by federal law enforcement agents in any investigation of corporate misconduct: (1) to be qualified for any cooperation credit, corporations must provide the Department all applicable facts about the individuals involved in the corporate misconduct; (2) criminal and civil corporate investigations should target individuals from the commencement of the investigation; (3) routine communication must be present between criminal and civil attorneys handling corporate investigations; (4) no corporate resolution will provide protection from criminal or civil accountability for any individual, unless it is an out of the ordinary circumstance; (5) before resolution of corporate cases, a plan to resolve similar individual cases must be memorialized; and (6) civil attorneys should focus on individuals as well as the company and determine if suit should be filed against the individual wrongdoer(s) based on considerations above that wrongdoer’s ability to pay.
As a result of these changes, healthcare corporations are likely to see a rise in the number of individual prosecutions. Healthcare corporations are well advised to seek the early assistance of learned, experienced healthcare legal counsel when first contacted by any agents regarding federal inquiries or federal payor audits (e.g., Medicare or Medicaid audits) to limit individual criminal or civil liability.
Robert S. Iwrey, Esq., a founding partner of The Health Law Partners, P.C., practices in all areas of healthcare law and devotes a substantial portion of his practice assisting clients in government investigations, third party payor audits, DEA registrations, state licensing, pharmacy legal matters, and compliance. For more information regarding this article, please contact Robert S. Iwrey, Esq. at (248) 996-8510 or (212) 734-0128 or firstname.lastname@example.org.