DOJ's New Self-Disclosure Rules: Decide Fast or Lose the Credit

And, you know, and obviously we're looking at a single instance.

It's a press release.

So you don't have the same facts that you would get if this case had gone to trial and you could review documents.

And so, Elena, you know, with that in mind, we have this one snapshot.

But how? How should companies weigh the certainty of these DOJ expectations, which it seems from that case that Melissa just described, seem to follow the tree kind of identical, right? That if you walk through CEP policy against uncertainty of what the actual outcomes will be.

I mean, in this case, it worked out for that company, right? But there are a lot of factors to consider.

What are your thoughts there?

Yeah, and I think it goes back to the fact that, as Melissa said, the CEP sets forth a framework to follow and for assessment.

So I think following, as we see more precedent cases, sort of making the news and we can sort of monitor what the facts are considered by the DOJ in those cases.

I think the fact that we have a recent case is a great example of that, so that companies can follow that.

sort of a template as far as, you know, what to assess and just based on the limited information that's out there publicly.

But it does give a framework to follow when assessing misconduct that might be discovered at the company level.

But I think ultimately, a threshold question for a company to consider and when they're entertaining self-disclosure under this policy is, you know, whether the company can satisfy what's required and how quickly they can do that.

So in some regards, I think it's almost a leap of faith to self-disclose because ultimately, too, the company may not have full transparency into what the DOJ already knows or what, again, they maintain the discretion, right? So what they'll consider to be fully cooperative when assessing whether to award declination.

So I think that leap of faith analogy is really great.

And Melissa, you know, building on that, do you think we're going to see more disclosures under CP? Are they just going to be faster where people are saying, oh, I need to get something in the door? Because what Elena raised, they're concerned.

DOJ is already aware.

And if we don't get out there in front of this, it's going to be a bigger problem.

I do think it puts an incentive out there.

It definitely gives a carrot to companies to self-disclose.

Another factor that I think is important, even though it's on the civil side, it's certainly in healthcare cases where civil and criminal are very often investigated in parallel fashion, and increasingly so over the last few years, is the Department of Justice's newly announced reforms to accelerate the review of False Claims Act key TAMs alleging fraud against federally funded state-administered benefits programs, such as Medicaid.

That new policy provides a 60 to 120 initial timeframe for review of FCA key TAMs that fall into this category.

And at the conclusion of that review, the department will decide whether to permit the relator to proceed with the action and assume primary responsibility for litigating that action, subject to the government's ongoing supervision and ultimate control of the matter.

To conclude, the allegations warrant further government investigation, and there's CIDs or other process served, or three, determine that the key TAMs should be dismissed under 3730C2A authority, which we've heard from folks at the civil side of the Department of Justice, they are much more inclined in this administration to exercise because the allegations lacks adequate specificity or legally deficient.

But we also note that under this new department policy on the civil side, they have affirmatively stated that all new matters involving federally funded public benefit programs will be promptly referred to the criminal division or the new national fraud enforcement division for evaluation of potential criminal violations.