Brief Your CEO about Individual Liability

False Claims Act (FCA) and Anti-Kickback (AKS) prosecutions against labs are just two ways the US Justice Department cracks down on corporate wrongdoing. But while the threat of FCA and AKS corporate liability is not new, on Sept. 9, 2015, the DOJ ratcheted up the pressure when then Deputy Attorney General Sally Quillian Yates issued a memo calling on prosecutors to focus not just on the corporation but the individuals responsible for its transgressions. Just because there is a new administration and a new Attorney General doesn’t mean a focus on individual responsibility will be abandoned. Given its liability ramifications, your executives are no doubt aware of the Yates Memo. But it’s still a good idea to provide a briefing to keep compliance and individual responsibility front of mind.

There are three key points your executives should take away from your briefing:

1. The Yates Memo is a game changer in the sense that it pits labs against their own executives as organizations looking for credit for cooperating with government investigators must disclose relevant facts about individuals involved;
2. The Yates Memo is very real and has made a discernible difference in federal fraud enforcement;
3. The DOJ is likely to continue following the Yates Memo policies under the new administration.

For more explanation on what to say in your briefing, including an explanation of the ways the Memo changes DOJ enforcement policy and how it has affected recent health care prosecutions—as well as some predictions regarding the future of the Yates memo, see the February issue of G2 Compliance Advisor. And for an in-depth review of the Yates memo and its implications, see “Compliance Perspectives: Yates Memo Creates Additional Compliance Risk for Labs and Their Executives,” G2 Compliance Advisor, Dec. 2015.