[Source: "Current Perspectives on Healthcare Governance: A Roundtable Discussion Among Experts: Part I", AHLA]
Some Department of Justice policies for pursuing criminal charges:
Prior criminal history, rogue employee or pervasive institutional conduct, severity of conduct and victim impact, adequacy of compliance programs, remedial efforts and disciplinary sanctions, self-disclosure and cooperation with the government. These factors are explained in the 2003 DOJ "Thompson Memo" about which there has been much controversy. (That memo can be found at: www.usdoj.gov/dag/cftf/corporate_guidelines.htm.)
Common federal statutes employed:
The conspiracy, mail fraud and wire fraud (under U.S.C. §§ 1341 and 1343), and bank fraud statutes are all old standbys for federal prosecutors. That said, the healthcare fraud statute (18 U.S.C. § 1347), the criminal Health Insurance Portability and Accountability Act disclosure statute (42 U.S.C. § 1320d-6), and the honest services fraud statute (18 U.S.C. § 1346) are apt to be increasingly used.
Criminal violations also can jeopardize tax-exempt status under what is called the "illegality doctrine." Most notably for healthcare organizations, the IRS has used that doctrine (in Couns. Mem. 39,862, Nov. 21, 1991) to warn hospitals that violating the Anti-Kickback Statute is an activity inconsistent with charitable purposes and jeopardizes Section 501(c)(3) tax-exempt status.
What is the most important federal statute that addresses document destruction, and one to keep in mind when a company is designing and implementing its document retention policy? Probably, 18 U.S.C § 1519, added to the criminal code by the Sarbanes-Oxley Act of 2002. Any knowing alteration or destruction of material in anticipation or contemplation of any kind of federal matter or proceeding could be obstruction under this law. A criminal investigation need not have started. Indeed, this statute does not require that there be any investigation at all. This covers any civil or administrative agency proceeding too. Moreover, under this statute, it is a crime if you destroy a document "in contemplation" of a possible federal proceeding. This is an incredibly broad statute, the reach of which has not yet been litigated.
