In December 2022, Attorney General Merrick Garland issued a new Department of Justice (DOJ) charging, pleas, and sentencing policy memorandum (Policy). While the memorandum affirms the previous DOJ guidance in the Principles of Federal Prosecution (Principles), the new Policy provides for additional prosecutorial discretion in charging, plea agreements and the sentencing process. Charging Decisions …

On August 29, 2022, the United States Sentencing Commission published The Organizational Sentencing Guidelines: Thirty Years of Innovation and Influence. The publication summarizes United States Sentencing Guidelines Chapter 8’s development and discusses the substantive changes to the elements of an effective compliance program. It also includes a snapshot of corporate sentencing over the last …

On September 15, 2022, the Deputy Attorney General Lisa Monaco announced the Department of Justice’s (DOJ) revisions to corporate criminal enforcement policies following discussions with the corporate crime advisory group. The policy changes focus on individual accountability, corporate accountability, monitorships, and transparency in corporate criminal enforcement. The policies in the memorandum will be incorporated …

On July 20, 2022, the Department of Justice (DOJ) charged dozens of individuals for $1.2 billion in healthcare fraud violations. The cases focused on telemedicine, clinical laboratories, and durable medical equipment fraud. https://www.justice.gov/opa/pr/justice-department-charges-dozens-12-billion-health-care-fraud On the same day, the Office of Inspector General for the Department of Health and Human Services (HHS OIG) issued a …

In June 2022, the Fifth Circuit issued two decisions regarding the federal Anti-Kickback Statute (AKS), 42 U.S.C. 1320a-7b(b). The AKS criminalizes the knowing and willful payment of remunerations to induce referrals paid by federal healthcare programs. Remunerations is broadly defined to include anything of value. One opinion (Cooper) addressed self-referrals under subsection (2)(A) of …

In Xiulu Ruan V. United States, No. 20–1410 (June 27, 2022), the Supreme Court ruled that under the Controlled Substances Act for prescribing of opioids and other addictive drugs, the government must show that doctors knew they lacked a legitimate medical purpose. In this case petitioner doctors Xiulu Ruan and Shakeel Kahn successfully appealed …

In Taylor Lohmeyer Law Firm P.L.L.C. v. United States, 957 F.3d 505 (2020), the Fifth Circuit affirmed the district court’s ruling that a law firm’s clients’ names were not protected by the attorney client privilege. Taylor Lohmeyer, a Texas law firm, filed an action to quash an IRS John Doe summons. The IRS had …

The Department of Justice (DOJ) announced a nationwide coordinated law enforcement action to combat healthcare-related covid fraud. On April 21, 2022, the DOJ announced criminal charges against 21 defendants in nine federal districts across the United States for their alleged participation in various health care related fraud schemes that exploited the COVID-19 pandemic. These …

The False Claims Act (31 U.S.C. §§3729-3733; “FCA”) imposes liability on persons and companies who defraud the government. Last year, DOJ recovered more than $5.6 billion in settlements and judgments from civil cases involving fraud and false claims against the government. Notably, of the over $5.6 billion recovered, over $5 billion involved the health …

The U.S. Department of Health and Human Services’ (HHS) Office of Inspector General (OIG) released its annual Solutions to Reduce Fraud, Waste, and Abuse in HHS Programs: OIG’s Top Unimplemented Recommendations. The OIG directed most of its recommendations to CMS to help “reduce improper payments, prevent and deter fraud, and foster economical payment policies.” Specific …