Jacob T. Elberg, Neither Carrots nor Sticks: DOJ’s Unfulfilled Commitment to Corporate Health Care Compliance, 2022 Wis. L. Rev. 691 (2022).
Abstract
This Article is the third in a series analyzing civil FCA resolutions, looking not only at DOJ’s stated policies but also at actual outcomes through review of a data set of resolved cases against health care entities. Until now, those analyzing the extent of benefits for corporate compliance programs have focused on criminal cases, particularly those under the Foreign Corrupt Practices Act, and have focused primarily on the potential for a compliance defense to criminal liability. Surprisingly, the literature has to date failed to analyze this question in the context of the FCA, and thus the health care industry, despite its supremacy as a DOJ enforcement target and despite the fact that the FCA’s mens rea standard is more likely to sweep in cases in which applying a compliance benefit would further DOJ’s enforcement goals.
