The acting chief of the DOJ’s Criminal Fraud Section announced a new partnership last month between the DOJ’s Healthcare Fraud Unit’s Corporate Strike Force and Foreign Corrupt Practices Act prosecutors.
Their mission is to “investigate and prosecute matters relating to health care bribery schemes, both domestic and abroad.”
Sandra Moser, speaking at the ACI Global Forum on Anti-Corruption in High Risk Matters on July 25, said the new partnership formalized the coordination of healthcare bribery cases within DOJ.
Moser’s announcement is an affirmation that DOJ’s focus on international and domestic healthcare fraud is not subject to political tailwinds. Her words signal that while there was a slowdown in both healthcare fraud and FCPA cases brought by Main Justice in the first half of 2017, the DOJ is stepping up its enforcement efforts.
In 2016, the DOJ’s Heathcare Fraud Unit charged 233 individuals and obtained 152 convictions. Similarly, in 2016, twenty-seven companies paid about $2.48 billion to resolve FCPA cases — making it the biggest enforcement year in FCPA history.
Several of the FCPA cases involved high-profile healthcare-related settlements, including $519 million Teva Pharmaceutical settlement.
Between 2009 and 2015, nineteen health care-related companies involved in FCPA settlements.
Sandra Moser said the DOJ views the healthcare industry as one that “faces serious compliance and corruption challenges not only in high risk markets oversees but right here at home as well.”
Echoing the DOJ’s must-read February 2017 Evaluation of Corporate Compliance Program, a list of questions that the Criminal Fraud Section will ask during an investigation, as well as the extremely useful HHS-OIG/HCCA’s March 2017 Measuring Compliance Program Effectiveness: a Resource Guide, Moser noted that there are “basic” compliance components that the DOJ expects international corporations to have, such as:
- maintaining a confidential employee hotline
- enhancing training
- obtaining certifications from those “at the top of the food chain” regarding the effectiveness of the compliance program, and
- adopting guidelines to clawback bonuses and other compensation from executives who “engage in misconduct or who simply fail to promote compliance within their organization.”
Moser also urged health care companies to “empower” their compliance executives now, rather than forcing them to “sit before the Department and defend a program that they fought to make better and were denied the resources or backing to see through.”
Looking forward, healthcare companies would be well served by Moser’s warning that they need to “invest in compliance now than using that would-be investment to pay a criminal fine down the road.”
Healthcare companies must pro-actively respond to DOJ’s increased enforcement initiative and should not only assess the effectiveness of their corporate compliance programs but also make any necessary enhancements in advance of any governmental investigation.
For instance, healthcare corporations should, among other things:
- enact strong anti-bribery compliance policies to minimize the risk of an FCPA violation
- ensure adequate oversight, training and resources for both employees and contractors, including an emphasis on local business practices or expectations and the legal boundaries set forth in the FCPA bribery laws
- ensure routine audits to ensure compliance, and
- establish mechanisms to appropriately and quickly address FCPA violations when they are discovered.
Healthcare-related companies are on notice: The DOJ is not backing down from its recent focus on the industry, but rather has stepped up its enforcement efforts.
Melissa L. Jampol, pictured above left, is a Member of Epstein Becker Green in the Health Care and Life Sciences and Litigation practices, in the firm’s New York and Newark offices. She’s a former federal and state prosecutor. She can be contacted here.
Matthew Savage Aibel, pictured above right, is an Associate at Epstein Becker Green in the Litigation and Employment, Labor & Workforce Management practices, in the firm’s New York office. He can be reached here.