GOVERNMENT HOSPICE INVESTIGATIONS - New …...ARNALL GOLDEN GREGORY LLP BY: KATIE ROSE FINK HHS OFFICE OF INSPECTOR GENERAL JANUARY 31, 2017 Hurricanes (USA) Year Cost 2013 $0 2014

GOVERNMENT

HOSPICE INVESTIGATIONS

PRESENTED TO:

GEORGIA HOSPICE AND PALLIATIVE CARE ASSOCIATION

BY: JASON BRING

ARNALL GOLDEN GREGORY LLP

BY: KATIE ROSE FINK

HHS OFFICE OF INSPECTOR GENERAL

JANUARY 31 , 2017

Hurricanes (USA)

Year Cost

2013 $0

2014 $3.69 million

2015 $0

Investigations

Year Cost

2013 $4.33 billion

2014 $3.3 billion

2015 $2.4 billion

HURRICANES VERSUS INVESTIGATIONS

WHY AN INVESTIGATION

PREPAREDNESS PLAN?

Any person who –

(1) knowingly presents, or causes to be presented . . . a false or fraudulent claim for payment or approval;

(2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government; [is liable for:]

Treble damages

Penalties of between $10,781 to $21,563 per false claim

6

THE FALSE CLAIMS ACT (FCA)

31 U.S.C. §§ 3729 - 3733

What is Exclusion?

Prospective administrative remedy

Exclusion means no payment from Federal health care programs for

items/services furnished by excluded provider

Exclusion applies to direct providers (e.g., doctors, hospices, hospitals)

and indirect providers (e.g., drug manufacturers)

Exclusion applies to individuals and entities

In civil cases, conduct that results in False Claims Act liability

also forms a basis for affirmative permissive exclusion .

In many FCA civil cases, OIG will release exclusion in exchange for

defendant’s agreement to enter a CIA.

In criminal cases, pleas/convictions for many criminal violations

implicate derivative exclusion, including mandatory exclusion.

Coordination with OIG is critical.

OIG EXCLUSION STATUTE42 U.S.C. § 1320A-7, 42 C.F.R. PART 1001

MORE GOVERNMENT

RESOURCES AND TOOLS

• Increased resources for “fraud prevention and

enforcement”

More funding = More prosecutors and agents =

More investigations

• Harsher penalties for fraud offenses

Increased sentences for offenses (especially health

care fraud)

Increased use of civil and criminal forfeitures

• DOJ has recovered $26.4 billion in since 2009

• Increased focus on individual accountability, not just

corporate monetary settlements – the “Yates Memo”

8

Hospice Annual Average Paid Per Capita

(Part A-Enrolled FFS Beneficiary) for CY 2015

HOSPICE CY 2015

National

Average

Paid Per

Capita:

$387

ANATOMY OF A

GOVERNMENT

INVESTIGATION

1111

• Medicare pays “without looking”

- “Potential for waste, fraud and abuse is high”

- Kerry N. Weems

CMS Acting Administrator

October 2008

CMS Calls It “Post-Payment Review”

TRADITIONALLY PAY THEN CHASE

1313

• RAC - Recovery Audit Contractor

• ADR - Additional Development Review

• CERT - Comprehensive Error Rate Testing

• PERM - Payment Error Rate Measurement

• MAC - Medicare Administrative Contractor

• ZPIC - Zone Program Integrity Contractor

• UPIC - Unified Program Integrity Contractor

Enforcement Shark Tank

HOSPICE INVESTIGATION

AREAS AND EXAMPLES

HOSPICE RISK AREAS

Services provided to ineligible beneficiaries

Early or false diagnosis of terminal illness

Medically unnecessary levels of service (e.g., continuous care)

Overuse of crisis care

Intensive comfort care

Hospice eligibility

Long average lengths-of-stay

High live discharge rates

Asking patients to revoke hospice elections when the patients seek hospital services15

Aggressive marketing and bonuses (especially for clinical staff)

Pressuring or incentivizing staff to meet census targets

Lack of or falsified physician certifications

Falsification of medical records, including pre -signing of blank medical forms

Improper physician incentives

Payment of remuneration to physicians in exchange for referrals

Lucrative medical director contractors

Employment of excluded individuals

HOSPICE RISK AREAS

AREAS OF FOCUS – HOSPICE

OIG Report: Hospices Inappropriately Billed Medicare Over $250 Million for General Inpatient Care (OEI-02-10-00491, March 2016)

Study found that hospices billed one-third of general inpatient care (GIP) inappropriately, costing Medicare $268 million in 2012

GIP is the second most expensive level of hospice care and is intended to be short-term inpatient care for symptom management and pain control that cannot be handled in other settings.

Hospices commonly billed for GIP when the beneficiary did not have uncontrolled pain or unmanaged symptoms

17


OIG Report: Hospices Should Improve Their

Election Statements and Certifications of

Terminal Illness (OEI-02-10-00492, September

2016)

Study found that hospice election statements

lacked required information or had other

vulnerabilities in more than one-third of general

inpatient care stays.

Notably, they did not always state—as required—that

the beneficiary was waiving coverage of certain

Medicare services by electing hospice care or that

hospice care is palliative rather than curative.18

OIG Report: Medicare Hospice Care for Beneficiaries in Nursing Facilities: Compliance with Medicare Coverage Requirements (OEI -02-06-00221, September 2009)

Study found that 82% of hospice claims for beneficiaries in nursing facilities did not meet at least one Medicare coverage requirement

Election requirements (33% of claims did not meet)

Plan of care requirements (63% of claims did not meet)

Certification of terminal illness requirements (4% of claims did not meet)

Hospices provided fewer services than outlined in beneficiaries’ plans of care in 31% of claims

Medicare paid approximately $1.8 billion for these claims


EXAMPLE 1

In May 2013, the government sued national

hospice company, alleging false Medicare

billings for hospice services.

Government alleged that company paid

employees bonuses that were tied to the

number of patients they enrolled for crisis care

services when those services were allegedly not

medically necessary.

20

EXAMPLE 1

Alleged that the company used “aggressive marketing tactics and expected their employees to increase the number of crisis care claims submitted to Medicare, without regard to whether the crisis care services were appropriate.”

Alleged that the company offered “intensive comfort care” services in one of its brochures and “misled patients and their families to believe that the Medicare hospice benefit would routinely cover around the clock care for hospice patients, without regard to the requirement that such care be provided only for acute medical symptoms resulting in brief periods of crisis”.

21

EXAMPLE 2 - ARIZONA

In March 2013, an Arizona hospice

management company agreed to pay $12

million and enter into a corporate integrity

agreement.

Overarching allegations were that company

submitted false Medicare claims for patients

who were ineligible to receive end of life

benefits and

submitted bills at a higher reimbursement than

it was entitled. 22

EXAMPLE 2 - ARIZONA

The government alleged that the company:

pressured staff to find more patients eligible

for Medicare

adopted procedures that delayed and

discouraged staff from discharging patients

from hospice when they were no longer

appropriate for such services

did not implement an adequate compliance

program

23

EXAMPLE 3 - FLORIDA

In July 2013, a Florida hospice company agreed

to pay $1 million and enter into a corporate

integrity agreement to resolve allegations for

claims between January 1, 2005 and December

31, 2010.

The government alleged that the hospice

submitted claims for patients who did not need

end of life care.

24

EXAMPLE 3 - FLORIDA

More specifically, the government alleged that the hospice:

caused staff to admit ineligible patients in order to meet targets imposed by management

adopted procedures to delay and discourage staff from discharging patients who were not appropriate for hospice services

instructed staff to make false or misleading statements in patients’ medical records to make them appear eligible when they were not

25

EXAMPLE 3 - FLORIDA

The settlement also resolved allegations that:

The company billed the government at higher reimbursement rates than it was entitled to receive

provided illegal kickbacks when it provided free services to SNFs in exchange for patients

failed to implement an adequate compliance program that might have corrected these problems.

26

EXAMPLE 4 – SOUTH CAROLINA

In November 2012, South Carolina company

and its CEO agreed to pay the government

$1.2 million and enter into a corporate

integrity agreement.

Alleged to have submitted or caused to be

submitted false claims for patients who did

not have a terminal prognosis of six months

or less and thus were ineligible for hospice

care .

27

EXAMPLE 5 - FLORIDA

November 2013: A Florida hospice company

entered into a $3 million settlement with the

government to resolve allegations that, from

2005 to 2010, it submitted false claims to

Medicare for hospice care patients who were

not terminally ill.

28

EXAMPLE 5 - FLORIDA

The government alleged that the company’s

CEO verbally instructed the company

employees to admit Medicare recipients for

hospice care even where there had not yet

been a determination that they were eligible

for the hospice benefit.

The lawsuit also alleged that, after being

notified that it would be audited, the

company discharged at least 150 patients in

2009-2010 as being ineligible for Medicare.

29

EXAMPLE 6 - ARIZONA

In August 2012, Arizona hospice agreed to

pay $3.7 million to resolve allegations

that the company and its co-owners

submitted claims for patients who:

were either completely or partially

ineligible for hospice or

were provided a higher level of hospice

care than was necessary or allowable.

30

EXAMPLE 6 - ARIZONA

As part of the settlement, both co-owners

agreed to be excluded from participation in

federal health care programs for a period of

seven years.

31

EXAMPLE 7 - KANSAS

In June 2012, Kansas hospice company and

its parent company agreed to pay $6.1

million to resolve allegations that they

submitted claims between 2004 and 2008

for beneficiaries who did not have a terminal

prognosis of six months or less.

32

EXAMPLE 7 - KANSAS

The government alleged that the companies:

paid clinical employees based on patient

census and admissions

delayed discharges of patients determined

not to have a six month or less prognosis

Instructed staff to document patient

conditions in a misleading manner , and

had an inadequate compliance program

33

Community Health United Home Care, LLC (October 2015)

$9.8 million settlement arising from a self -disclosure.

Submitted false claims for hospice services without certifications of terminal i l lness.

Phoenix Company (October 2015)

• $2.2 million settlement.

• Allegations that company submitted false claims to Medicare for hospice patients who were not eligible to be admitted.

• Company also entered a 5-year CIA. Founder and former president of Serenity agreed to five-year exclusion from federal health care programs.

Alive Hospice, Inc. (September 2015)

$1.5 million settlement.

• Allegations that Alive billed for services provided to patients who did not qualify for general inpatient hospice care.

2015 HOSPICE SETTLEMENTS

• Good Shepherd Hospice (February 2015)

• $4 million settlement, 5-year CIA

• Allegations that Good Shepherd provided hospice

services to patients who were not terminally ill.

Compassionate Care Hospice of New York, LLC

(February 2015)

$4.9 million settlement, 5-year CIA

Submitted false claims for hospice visits never

performed, and then falsified notes to make it

appear the visits had been performed.

2015 HOSPICE SETTLEMENTS

In September 2016, a national provider paid a penalty of more than $3 million for failing to comply with a corporate integrity agreement.

Failure to correct improper billing practices in the fourth year of the five-year agreement.

OIG made several unannounced site visits to the facilities and alleged ongoing violations.

Company was billing Medicare for hospice care for patients who were ineligible for hospice services or who were not eligible for the highest level and most highly paid category of service.

As a result of the findings of CIA -required audits of its claims, the company decided to close 18 sites that it characterized as underperforming since March 2015.

ENFORCEMENT OF HOSPICE CIA

HOSPICE INVESTIGATION EXAMPLES

Georgia - $555,572

Texas - $25 million

$1,830,322.41

$2.7 million

$24.7 million

Social Ministries - $10.56 million

$3.7 million

Texas - $500,000

San Diego - bankruptcy

37

Government alleged that company defrauded

Medicare by coercing employees to admit

borderline patients

Alleged that certifications of terminal illness for

may patients were unsupported

Federal Judge allowed case to go to trial but

bifurcated the trial into two phases: (1) falsity

element, (2) other elements

ASERACARE

Jury found that 104 of 121 patient cases had

been falsely certified

$200 million in potential liability

Judge tossed the verdict

Then said that case should not have gone to trial

Granted summary judgment for AseraCare

ASERACARE

“[T]his case boils down to conflicting views of

physicians about whether the medical records

support AseraCare's certifications that the

patients at issue were eligible for hospice care."

"When hospice certifying physicians and medical

experts look at the very same medical records

and disagree about whether the medical records

support hospice eligibility, the opinion of one

medical expert alone cannot prove falsity without

further evidence of an objective falsehood."

ASERACARE – JUDGE’S RULING

Make sure your admitting physicians and

medical director(s) :

Are very involved in the decision to admit,

Are advised of potential changes in condition,

and

Are free from any undue influences that might

compromise their clinical judgment.

TAKEAWAY

HOW IT BEGINS

INITIATING AN INVESTIGATION:

• Investigations are initiated based on:

Qui Tam (Whistleblower) Lawsuits

Calls to the OIG Hotline

Information developed during audits, claims

reviews, etc.

Media reports by investigative journalists

Activity and communications on the internet

Complaints

Data Mining!

43

44

HOW DO COMPANIES TYPICALLY LEARN

ABOUT AN INVESTIGATION?

Government agents contact current or

former employees of the company for

interviews, who in turn advise the

company.

Service of an OIG subpoena, DOJ civil

investigative demand (CID) or similar

request.

Government search warrant or raid.

45

POSSIBLE STEPS GOVERNMENT MAY HAVE

TAKEN BEFORE COMING

Reviewed corporate filings

Interviewed former employees

Obtained financial records

Conducted physical surveillance of

employees and – to the extent it is open and

public – of the company premises

Conducted electronic surveillance.

© 2014. Arnall Golden Gregory LLP

OVERVIEW OF

INVESTIGATION PHASES

Snooping Phase (may trigger legal hold)

Formal Document Demand and Production (does trigger legal hold)

Formal Interviews / Depositions

Competing Presentations

Litigation or Resolution

INVESTIGATION PHASES – DOJ / OIG

FIRST STEP: ISSUE

LITIGATION / LEGAL HOLD

49

LEGAL HOLDS

• Required once litigation is reasonably

anticipated.

• Must take steps necessary to preserve and

prevent destruction of any documents and/or

data related in any way to the subject matter of

the dispute.

• Must preserve all hard-copy and electronically-

stored information, regardless of the form in

which the information is generated and

maintained.

• Destruction, loss, or alteration of potentially

relevant evidence may result in sanctions

against the company and/or counsel.

50

AVOIDING OBSTRUCTION

Companies have an obligation to preserve

documents and data.

Obligation is triggered when a company

knows or should know that documents or

electronic data will become “material” to

litigation “at some point in the future.” Lewy

v. Remington Arms Co., Inc., 836 F.2d 1104,

1112 (8th Cir. 1988)

Failure to fulfill this obligation can expose

companies, employees and counsel to

potential criminal and civil liability and

penalties.

51

LITIGATION HOLDS

Identify the key players: employees who

may have relevant information;

Identify potential sources of electronically

stored information;

Confirm that all such information is being

preserved; and

Develop a plan to continue that

preservation.

52

LITIGATION HOLDS

• Conduct the necessary follow-up:

Ensure that all custodians understand

the obligation to preserve relevant

information.

Issue notices (preferably using tracking

software) describing the preservation

obligation and litigation hold.

Prepare the document hold

memorandum.

LEGAL HOLDS

Identify Preserve

Chain of Custody

Collect

Legal Hold

Identify Custodians

Identify Their Data

Issue Them Hold Notices

LEGAL HOLD – IDENTIFICATION PHASE

Issued by Attorneys or Compliance

Officer

Sent to Custodians (employees)

Requires Signed Acknowledgement

and ID of Other Potential Custodians

LEGAL HOLD NOTICE

Jane Doe, CFO

Acknowledged Notice

Identified other custodians

Issued routine reminders

John Doe, COO

Acknowledged Notice

Identified other custodians

Issued routine reminders

LEGAL HOLD TRACKING

• We use sophisticated software to issue and track

litigation hold responses and to issue updates:

Issued Notice

Issued Notice

Preserve in Place

•Leave files untouched

•Leave email in its place

•Do not access or move electronic info

Suspend Destruction

•Suspend automatic purging

•Suspend scheduled file destruction

•May include suspending shred boxes

Implement IT Freezes

•Custodian accounts archived or mirrored by IT

•Auto-delete functions suspended

•Delete functions suspended

PRESERVATION

Documents

• Physical files

• Board minutes

• Employee files

• Patient charts

• Billing info

• Financials

ESI

• Word documents

• Memos

• PowerPoints

• Spreadsheets

• OneNote

• EHR

• Usually collected natively

• Laptops

• Personal devices

Email

• Collect entire custodian account from server

• Personal email accounts if used for work

• Laptops

• Everything is collected and then filtered later

COLLECTION

59

LEGAL HOLDS

• Hardcopy documents should be identified,

collected, and placed in a secure location until the

dispute is completely and finally resolved.

• Collection of hardcopy documents includes not

only “clean” copies of the documents, but also

additional copies of the same documents that

contain unique information created after the

documents were printed (i.e., paper documents

containing handwriting, highlighting, signatures,

marginalia, drawings, annotations, and/or

redactions).

• Take necessary steps to suspend or modify

procedures calling for the routine destruction of

hardcopy records.

60

LEGAL HOLDS

• Electronically-stored information (“ESI”) may

also become an important and irreplaceable

source of discovery and/or evidence.

• ESI includes e-mail, word processing

documents, spreadsheets, databases,

calendars, voice mail, Internet usage files,

network access information, etc.

• The rules prohibiting the destruction of

evidence apply to ESI in the same manner that

they apply to other evidence.

GOVERNMENT AGENT

INTERVIEWS OF

EMPLOYEES

62

GOVERNMENT AGENT INTERVIEWS

OF EMPLOYEES

Most likely to be at employee’s home (“knock and

talk”) or by phone.

But may also be attempted on company premises

while serving a subpoena or executing a search

warrant.

If a knock and talk, the employee is unlikely to be

the only employee contacted by the government

Company should consider advising employees of

their rights in a carefully crafted written

memorandum to prevent any misapprehension by

the government as to the advice given.


ADVISE EMPLOYEES OF THEIR RIGHTS?

Remember: Employees may be cooperating with the government

Direct employees to written guidance on how to respond?

Pro: Safeguards company’s and employees’ interests

Con: Risks notifying more employees that government

is asking about company actions

Could be misinterpreted as pressure not to talk to the

government, which could be considered obstruction of

justice

63

64

ADVICE FOR EMPLOYEES WHO ARE

VISITED OR CONTACTED BY AGENTS

Be respectful and polite. Create a cooperative atmosphere.

Ask for the agent’s name and request to see a badge or

credentials. Get a business card or make photocopies.

Ask the agent about the purpose of the visit.

Understand what your rights are.

Survey rules do not apply.

Although the company is cooperating fully with the

government's inquiry and encourages employees to do the

same, you are not obligated to consent to an interview with

a government representative.

You may agree to be interviewed or you may decline to be

interviewed. It is solely your decision whether to

participate in an interview or not.

65



If you agree to be interviewed, you should

know that a record of the interview may be made.

pay attention and consider the questions carefully.

If you disagree in any way with the premise or

assumptions underlying the agent’s questions, you

should say so.

If you agree to be interviewed, you

-- may terminate the interview at any time

-- do not have to sign any statement or affidavit.

If you choose to sign a statement or affidavit, you

should ask to keep a copy.

66



If you wish, you may ask the agents to postpone

or schedule the interview for a time that is more

convenient for you.

If you wish to consult an attorney before being

interviewed, you may tell the agents that you

want to cooperate, but that you want to speak to

an attorney first.

If you are already represented by counsel, you

may tell the agents.

67



The agents may advise you that if you do not agree to

an interview, you will be subpoenaed later to testify.

While you may in fact receive a subpoena at some

future time, submitting to an interview now will not

necessarily preclude a subpoena later.

The agents may advise you not to discuss the interview

or their visit with anyone else.

You have the right to disclose or not to disclose the

interview.

Always tell the truth.

Do NOT destroy, erase, or alter documents at any time,

now or after agents try to talk to you.

68

CHECKLIST FOR EMPLOYEES:

SUMMARY OF KEY POINTS

The company cannot prohibit employees from speaking

with agents, but can advise them that it is their choice to

speak with the government agent or not.

The company can ask (but not order) employees to

notify the company if they are contacted.

Employees in a supervisory position must not advise

other employees against speaking with the

government. Such advice may be interpreted as

obstruction of justice.

Emphasize in writing the importance of telling the

truth.

Offer counsel for employee?


THE GOVERNMENT ASKS

FOR EVERYTHING AND

THEN SOME

OIG SUBPOENA LANGUAGEACTUAL HOSPICE SUBPOENA REQUEST

OIG SUBPOENA LANGUAGEACTUAL HOSPICE SUBPOENA REQUEST

ACTUAL HOSPICE SUBPOENA REQUEST






DOCUMENT AND DATA

PRODUCTION PHASE

The civil investigative demand will usually state

that documents must be produced within 30 days

That is impossible.

Typically attorneys agree to a rolling production:

Documents produced in phases

Government typically places emphasis on early

production of e-mails

Production for one CID may take 4 to 8 months

Potential for additional document requests

DATA PROCESSING AND PRODUCTION

MASSIVE DATA PER CUSTODIAN

7

31

0

10

20

30

40

2010 2013

Average GBs per Custodian

DOCUMENT PRODUCTION = EXPENSIVE

Processing

•Documents scanned and indexed

•Loaded into secure data base

•Chain of custody

•Metadata preserved

Filtering

•Date range filters

•Custodian filters

•De-duping

•Attorney-client filters

•Search term algorithms

Reviewing

•Review for attorney-client privilege

•Non-responsive data

•Identify good/ bad info for later use

Production

•Data produced to gov’t.

•Bates stamping

•Encrypted CDs

•Indexing

•Clawback agreement

DATA PROCESSING AND PRODUCTION

FORMAL CID

INTERVIEWS (LIKE DEPOSITIONS)

Agreed upon time

Topics to be given in advance

Agents and government attorneys often try to

dictate location

Company’s attorney may attend

If there is a relator, relator’s counsel may attend

If employee has personal attorney, they may attend

Objections are limited

Court reporter transcribes

Sometimes we see other agents attend – FBI, etc.

FORMAL CID INTERVIEWS OF EMPLOYEES

Employee must be thoroughly prepared

Opportunity to review and correct transcript, but

government is becoming more obtuse

For formal employees, typically no need for the

government to provide notice. Ability of the

company’s counsel to attend may be limited.

FORMAL CID INTERVIEWS OF EMPLOYEES

COMPETING

PRESENTATIONS

AND RESOLUTION

Upon conclusion of presentation, government

typically presents its concerns or alleged findings

Typically done at Department of Justice Office

Sometimes loaded with accusations and

accompanied with intimidation

May or may not provide copy of presentation

Company then will often prepare rebuttal

presentation

Company is at somewhat of a disadvantage as far

as time for preparing response

PRESENTATIONS / RESOLUTION

Possible resolutions:

Government drops the investigation

Government declines to intervene in whistleblower suit

Government makes demand and parties reach

settlement

Settlement often includes payment and corporate

integrity agreement, as well as payment of relator’s

attorney fees

If no settlement, then parties proceed to litigation in

federal court

PRESENTATIONS / RESOLUTION

SEARCH WARRANTS

WHAT TO DO WHEN THE GOVERNMENT

ARRIVES WITH A WARRANT

• Be respectful and polite – avoid confrontation

• Notify supervisor/designated contact/counsel immediately

• Counsel or a senior employee should request at the outset

of the search that all requests to speak to employees be

funneled through them

• Request a copy of the warrant and immediately provide to

counsel

• Agents may attempt to interview employees during the

course of the search. The rules previously discussed apply.

• Send non-essential employees home

• Obtain contact information for the government attorney

and agent(s) in charge of the search

91

Although employees should be polite and cooperative,

they should make clear that they do not consent to:

the search,

an expansion of the search beyond the areas specified in

the search warrant, or

seizure of documents outside the scope of the warrant.

Employees should object to the search of privileged

documents, to the extent they can identify them.

At a minimum, employees should request that privileged

documents be segregated from other seized or copied

documents, and that they be marked as such.


DURING THE SEARCH

The agents may seize only what’s listed in the warrant

and search only those areas listed in the warrant.

To the extent possible, create a record of what was

seized, observe what the agents are doing, and report

observations to counsel (if counsel is not present).

During the search, counsel/senior employee should

seek to track:

the specific areas and files searched,

the manner in which the search was performed, and

all verbal interaction with agents.


DURING THE SEARCH

The agents must provide an inventory of any items seized before leaving.

Agents typically ask that a company representative sign the inventory.

Employees should compare the inventory against their records of the search and should not sign the inventory unless it is accurate, complete and sufficiently detailed.

It is ok to ask the agents if they will accept copies in lieu of original documents and, if not, to make copies of the originals being removed.

If possible, photographs of the premises should be taken at the beginning and completion of the search.


INVENTORY OF RECORDS SEIZED AND

MEMORIALIZING THE SEARCH

THE YATES MEMO

DOJ/YATES MEMORANDUM

“Six key steps to strengthen our pursuit of

individual corporate wrongdoing”

To be eligible for any cooperation credit,

corporations must provide to the Department all

relevant facts about the individuals involved in

corporate misconduct.

Both criminal and civil investigators should focus

on individuals from the inception of the

investigation.

Criminal and civil attorneys handing corporate

investigations should be in routine communication

with one another.

DOJ/YATES MEMORANDUM (CONT.)

Absent extraordinary circumstances, no corporate

resolution will provide protection from criminal or

civil liability for any individuals.

Corporate cases should not be resolved without a

clear plan to resolve related individual cases before

the statute of limitations expires and declinations

as to individuals in such cases must be

memorialized.

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.

Jason Bring

[email protected]

ARNALL GOLDEN GREGORY LLP

404-873-8162

Katie Rose Fink

[email protected]

HHS Office of Inspector General

404-562-7613

© 2017

D i s c la i m e r : T h i s p r o g ra m i s in t e n d e d f o r e d u c a t i on a l p u rp ose s a n d m a y n ot b e c on s t ru e d a s l e g a la d v i c e o r t h e c re a t i o n o f a n a t t o r n e y -c l i e n t re l a t i o n s h ip . I f y ou h a ve a s p e c i f i c l e g a l q u e s t i o n , p le a s er e t a i n c o u n s e l .

O I G D i s c l a i m e r : T h i s d oc u m e n t is f o r e d u c a t i on a l p u rp os e s a n d d o e s n ot re p r e s e n t a n y v ie ws o r o f f i c i a lp o s i t i o n s o f t h e O f f i c e o f I n s p e c t o r G e n e ra l f o r t h e U .S . D e p a r t m e n t o f He a l t h a n d Hu m a n Se r v i c e s o rt h e U n i t e d S t a t e s G o v e r n m e n t .

QUESTIONS?