The Yates memo has made cooperation an all-or-nothing proposition: Either reveal all relevant information in the organization's possession proactively obtained or forego any cooperation credit or leniency. There is no government consideration for some “degree of cooperation” or a sliding scale for providing some information. Coupled with the strengthened focus on parallel civil and criminal actions, an organization faces perilous consequences of newly increased civil penalties, and the threat of criminal proceedings against itself, its employees, and its corporate leadership.
The policy embodied in these gradual, sharpened government policies and announcements—building upon two decades of policy and practice—suggests three best practices for healthcare executives to keep in mind.
As always, the best practice of all is a robust compliance program that helps an organization avoid conduct, whether intended or not, that could trigger government scrutiny. Devising the program is just the first step. The program must be implemented, and regularly evaluated and tested to ensure it is effective, and updated for an ever-evolving healthcare regulatory environment.
Conducting prompt, thorough internal investigations has taken on even greater importance with the need for the organization to determine what the risks are and what information needs to be disclosed to the government. This includes, crucially, the identification of any individuals who may be held responsible for problematic conduct. The new requirements for cooperation credit suggest healthcare organizations must consider how the interests of the company may diverge during the investigation from the interests of its employees and executives. Will managers and employees be forthcoming in an internal investigation if they fear they may be targets in a criminal probe or individually responsible for civil recoveries and penalties?
Finally, the organization's in-house and outside attorneys involved in a government investigation must constantly consider the ramifications of any action on all potential enforcement fronts. Information identified in the internal investigation becomes the currency for resolution and, in egregious cases, perhaps even survival, with consequences spreading all the way to the C-suite.
Lisa S. Rivera is a former civil and criminal assistant U.S. attorney for the Middle District of Tennessee and now is a partner in the litigation and healthcare fraud and abuse practice group of Bass Berry & Sims in Nashville. Jeff H. Gibson also has extensive experience representing clients in complex civil and criminal litigation and government investigations and is an attorney in the litigation and healthcare fraud and abuse practice group at Bass Berry & Sims.