Matthew S. Miner, Deputy Assistant Attorney General of the Criminal Division at the U.S. Department of Justice, gave the keynote speech at the 29th Annual National Institute of Health Care Fraud, held in New Orleans, LA.
In his speech, Miner, who supervises the Criminal Division’s Fraud and Appellate Sections, emphasized the DOJ’s continued commitment to combatting health care fraud, including utilizing carefully coordinated “takedowns” that have yielded “historic” results. In 2017, the DOJ conducted a takedown that resulted in the prosecution of 400 defendants, 56 of whom were doctors. In 2018, more than 600 defendants were charged, including 76 doctors. In 2019, the DOJ began to target telemedicine fraud, with recent takedowns of telemedicine company executives, owners of durable medical equipment companies, and medical professionals, for their participation in health care fraud that led to losses of over $1.2 billion.
Miner also emphasized the need for clear enforcement policies for institutional actors such as businesses and non-profits, opining that “clear enforcement policies can help influence decision‑making.” Miner indicated that the DOJ has strived in recent years to be increasingly transparent about its enforcement policies through changes in the Justice Manual which outline corporate cooperation expectations and guidance as to voluntary self-disclosure credit. Miner pointed to the newly announced Guidelines for Taking Disclosure, Cooperation, and Remediation into Account in False Claims Act Matters as an example. The Guidelines set forth the factors DOJ lawyers will consider (and the credit available) when a company or individual voluntarily discloses misconduct that could result in FCA liability or an administrative remedy.
Miner also noted that the criminal division and the civil division are beginning to take similar approaches to voluntary self-disclosures, and offered the following comments: “For those tracking the Department’s approach to voluntary self-disclosure in the civil and criminal health care fraud arenas, there is a remarkable degree of symmetry, and that is no accident. Although our criminal and civil enforcement tools are separate and often run along different tracks with different investigative teams, the reality is that a company facing a self-disclosure dilemma does not have multiple tracks. It must factor different risks, legal considerations, and potential outcomes into its analysis and reach a decision in the best interests of the company and its shareholders. At the Department, we understand that we need to be as clear as reasonably possible about our approach to those who voluntarily self-disclose, if we hope to influence the rational decision‑makers when they face self-disclosure dilemmas.”
Lastly, Miner addressed corporate compliance programs, noting that “prosecutors understand that compliance is not and cannot be one-size-fits-all.” Miner indicated that compliance monitors are not necessary where a corporation’s compliance program and controls are demonstrably effective and appropriately resourced at the time of resolution, and that monitors are generally disfavored unless there is a demonstrated need for one.
Miner’s keynote speech helps provide clarity and guidance to the FCA bar on a number of important and constantly evolving issues. We will continue to monitor for more policy and position statements from the DOJ.