Tag Archives: Jacob T. Elberg

Compliance Mandates in Civil Settlement Agreements—a New Trend?

by Jacob T. Elberg

Neither Carrots nor Sticks: DOJ’s Unfulfilled Commitment to Corporate Health Care Compliance

by Jacob T. Elberg

In October, Deputy Attorney General (“DAG”) Lisa Monaco assured an audience of white collar defense counsel,“[C]ompanies serve their shareholders when they proactively put in place compliance functions and spend resources anticipating problems. They do so both by avoiding regulatory actions in the first place and receiving credit from the government. Conversely, [the Department of Justice] will ensure the absence of such programs inevitably proves a costly omission for companies who end up the focus of department investigations.”[1]

This aspect of DAG Monaco’s speech drew little attention, as the Department of Justice (“DOJ”) has for decades sought to encourage four compliant behaviors in corporate actors: maintenance of an effective compliance program before the onset of government scrutiny (pre-existing compliance program), post-enforcement adoption of an effective compliance program, cooperation with a government investigation, and self-disclosure of misconduct. While DOJ’s public statements reflect a claimed commitment to all four, analysis of DOJ policy and resolved cases makes clear that as DOJ has increasingly prioritized and incentivized the latter three behaviors, the first—an effective pre-existing compliance program, the only one aimed towards stopping fraud before it occurs—has been cast aside in one of DOJ’s highest-profile enforcement areas: health care fraud.

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Health Care Fraud Means Never Having to Say You’re Sorry

by Jacob T. Elberg

The Securities and Exchange Commission’s use of “neither admit nor deny” settlements[1] continues to garner significant attention a decade after Judge Rakoff took aim at the policy. Most recently, authors on this blog used data from the Securities Enforcement Empirical Database (SEED) to examine the prevalence of “neither admit nor deny” settlements, as well as admissions of guilt, concluding that the SEC has, “albeit slowly, shifted away from the more aggressive prosecutorial stance instituted under Chair [Mary Jo] White” – a more aggressive stance taken in the wake of criticism from Judge Rakoff,[2] Senator Elizabeth Warren,[3] and countless commentators and scholars.

Strangely, while the SEC’s use of “neither admit nor deny” settlements continues to be the focus of criticism suggesting it is too lenient, there has been no similar criticism of the Department of Justice’s use of the False Claims Act, which plays a parallel role in health care enforcement to that of the SEC’s enforcement of the securities laws. Continue reading →

A Path to Data-Driven Health Care Enforcement

by Jacob T. Elberg

In recent years, the U.S. Department of Justice (DOJ) has increased guidance to entities regarding government expectations as to what I refer to as “compliant behaviors” – maintenance of an effective pre-existing compliance program, post-enforcement adoption of an effective compliance program, cooperation with a government investigation, and self-disclosure of misconduct – and increased transparency in criminal cases as to the benefits defendants can expect to receive for engaging in those behaviors. In the health care industry, however, it is not criminal prosecution but the civil False Claims Act (FCA) which represents the government’s primary means of fraud enforcement. With no parallel increase in transparency with regard to FCA cases, the health care industry and the defense bar have expressed skepticism regarding the actual payoff they might realize by engaging in compliant behaviors, even as resources devoted to health care compliance have skyrocketed. DOJ’s response has been a series of public statements amounting to, “trust us, they matter,” and there has been no mechanism to test those assurances – until now.

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