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DOJ Guidance on Evaluation of Corporate Compliance Programs: Key Takeaways

Boards and management should make use of recent expanded guidance from the US Department of Justice to ensure that their compliance programs are considered “effective” if and when an investigation arises. Companies should affirmatively answer three fundamental questions in evaluating a compliance program: Is the compliance program well designed? Is the program being implemented effectively and in good faith? Does the compliance program work in practice? Click here to access the full article. 

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DOJ Releases Detailed Criteria for Evaluating Compliance Programs

The Department of Justice (DOJ) doubled-down on emphasizing corporate compliance programs with new guidance from the Criminal Division Fraud Section with the "Evaluation of Corporate Compliance Programs" (Criteria).  This document, released February 8 without much fanfare, contains a long list of benchmarks that DOJ says it will use to evaluate the effectiveness of an organization's compliance program.  The Criteria may publicize the factors Hui Chen, the Criminal Division's 2015 compliance counsel hire, uses to evaluate compliance programs.  The Criteria also provides practical guidance on how organizations can evaluate their compliance programs.  This document operationalizes DOJ's Principles of Federal Prosecution of Business Organizations (knows as the "Filip Factors"), which stated that the existence and effectiveness of a corporation's preexisting compliance program is a factor that the DOJ will review in considering prosecution decisions. The Guidance...

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OIG Issues New Exclusion and CIA Guidance

On April 18, 2016, Inspector General Daniel R. Levinson announced the publication of updated guidance on how the Office of Inspector General (OIG) makes decisions about using its permissive exclusion authority and requiring integrity obligations when presented with a False Claims Act (FCA) settlement. This document is noteworthy not only to defendants in FCA cases but also to the health care industry in evaluating their compliance program activities. Section 1128(b)(7) Exclusion Authority The permissive exclusion authority at issue, Section 1128(b)(7) of the Social Security Act (42 USC 1320a-7(b)(7)), is the authority that permits OIG to bring an exclusion action for conduct that could also be pursued under the FCA—namely false or fraudulent claims or anti-kickback or Stark law issues. Negotiating the resolution of OIG's 1128(b)(7) authority is generally part of the settlement process of FCA cases and formed the basis for why OIG developed corporate integrity...

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