CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Posts Tagged ‘Department of Justice’

DOJ Issues Guidance for Cooperation Credit in False Claim Act Investigations

Posted on: May 10th, 2019

By: Michael Bruyere

The Provider Self-Disclosure Protocol was created in 1998 to encourage providers to voluntarily disclose self-discovered evidence of potential fraud. According to  OIG-HHS, self-disclosure (now commonly referred to as voluntary disclosure) gives providers the opportunity to avoid the costs and disruptions associated with a government-directed investigation and civil or administrative litigation.

From a provider’s perspective, implementing the Protocol initially was fraught with the perils of exposure to significant civil monetary penalties, including  the so-called “Death Penalty” or exclusion of the provider from certain federally funded programs, such as Medicare. Similarly, the original Protocol and subsequent revisions were unclear as to how a disclosing party would receive credit or favorable consideration in exchange for informing DOJ of potential misconduct.

On Tuesday, DOJ released its much-anticipated formal guidance for companies considering voluntary disclosure of potential misconduct. Seehttps://www.justice.gov/jm/jm-4-4000-commercial-litigation#4-4.112. “The Department of Justice has taken important steps to incentivize companies to voluntarily disclose misconduct and cooperate with our  investigations; enforcement of the False Claims Act is no exception,” according to Assistant Attorney General Jody Hunt.

“Cooperation credit,” according to DOJ, may be earned by participating in the disclosure Protocol or taking appropriate remedial measures once a violation has been identified. Examples of credit-earning actions include disclosing misconduct to the government beyond the scope of any ongoing investigation, preserving records and information above minimum requirements set by law or business practices, or facilitating the review by providing access to special or proprietary technologies.

Providers may expect to receive cooperating credit, most commonly, in the form of “a reduction in the damages multiplier and civil penalties.”

Any provider that discovers potential misconduct must immediately and thoroughly investigate the conduct and take whatever remedial steps are necessary to limit or eliminate any consequences to the federal government. DOJ’s guidance announced Tuesday should be scrutinized by compliance personnel and include in ever provider’s compliance program for voluntary disclosures.  The new guidance is a step toward allowing providers to better evaluate the risks versus benefits of essentially inviting the government to examine billing history and practices.  And the new credit opportunities also underscore the need for a provider to fully appreciate whether the suspected misconduct is actually a violation of federal law or simply a practice that requires improvement.

If you have any questions or would like more information, please contact Michael Bruyere at [email protected].

“Sanctuary Cities” Get a Reprieve For Now

Posted on: January 10th, 2019

By: Pamela Everett

As many city, county and state attorneys are aware, in 2017 the US. Department of Justice (DOJ) added three conditions to the application process for the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) program in an effort to eliminate so called sanctuary cities. The Byrne JAG program originated from the Omnibus Crime Control and Safe Streets Act of 1968,  which created grants to assist the law enforcement efforts of state and local authorities. Under the Byrne JAG program, states and localities may apply for funds to support criminal justice programs in a variety of categories, including law enforcement, prosecution, crime prevention, corrections, drug treatment, technology, victim and witness services, and mental health.

The first condition, called the “Notice Condition” requires grantees, upon request, to give advance notice to the Department of Homeland Security of the scheduled release date and time of aliens housed in state or local correctional facilities. The second condition, called the “Access Condition,” requires grantees to give federal agents access to aliens in state or local correctional facilities in order to question them about their immigration status. The third condition, called the “Compliance Condition” requires grantees to certify their compliance with 8 U.S.C. § 1373, which prohibits states and localities from restricting their officials from communicating with immigration authorities regarding anyone’s citizenship or immigration status. Grantees are also required to monitor any subgrantees’ compliance with the three conditions, and to notify DOJ if they become aware of credible evidence of a violation of the Compliance Condition. Additionally, all grantees must certify their compliance with the three conditions, which carries the risk of criminal prosecution, civil penalties, and administrative remedies. The DOJ also requires the jurisdictions’’ legal counsel to certify compliance with the conditions.

A number of jurisdictions have sued the DOJ and the U. S. Attorney General regarding these new conditions and sought a nationwide injunction; however, so far, none have  been successful in obtaining a nationwide injunction.  Recently a partial win was handed to the states of New York, Connecticut, New Jersey, Rhode Island, Washington, and Commonwealths of Massachusetts and Virginia and the City of New York. The States and the City challenged the imposition of the three conditions on five bases: (1) the conditions violates the separation of powers, (2) the conditions were ultra vires under the Administrative Procedure Act (“APA”), (3) the conditions were not in accordance with law under the APA, (4) the conditions were arbitrary and capricious under the APA, and (5) § 1373 violated the Tenth Amendment’s prohibition on commandeering.  This case challenged the authority of the Executive Branch of the federal government to compel states to adopt its preferred immigration policies by imposing conditions on congressionally authorized funding to which the states are otherwise entitled.

While the court held that the plaintiffs did not make a sufficient showing of nationwide impact to demonstrate that a nationwide injunction was necessary to provide relief to them, it did find as follows: (1) The Notice, Access, and Compliance Conditions were ultra vires and not in accordance with law under the APA. (2) 8 U.S.C. § 1373(a)–(b), insofar as it applies to states and localities, is facially unconstitutional under the anticommandeering doctrine of the Tenth Amendment. (3)  The Notice, Access, and Compliance Conditions violated the constitutional separation of powers. (4)The Notice, Access, and Compliance Conditions were arbitrary and capricious under the APA.  (5) The DOJ was mandated to reissue the States’ FY 2017 Byrne JAG award documents without the Notice, Access, or Compliance Conditions, and upon acceptance to disburse those awards as they would in the ordinary course without regard to those conditions.  Additionally, the DOJ was prohibited from imposing or enforcing the Notice, Access, or Compliance Conditions for FY 2017 Byrne JAG funding for the States, the City, or any of their agencies or political subdivisions.

The DOJ was prohibited from imposing or enforcing the Notice, Access, or Compliance Conditions for FY 2017 Byrne JAG funding for the States, the City, or any of their agencies or political subdivisions.

There are several other cases pending, including one filed by the City of San Francisco, seeking the issuance of a nationwide injunction to prohibit the enforcement of the new conditions. Stay tuned for more developments in this area.

If you have any questions or would like more information, please contact Pamela Everett at [email protected].

 

Related litigation: City of Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017); affd. appeal, City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018), but later stayed the nationwide scope of the injunction pending en banc review. Conference City of Evanston v. Sessions, No. 18 Civ. 4853, slip op. at 11 (N.D. Ill. Aug. 9, 2018) City of Philadelphia v. Sessions, 280 F. Supp. 3d 579 (E.D. Pa. 2017); City of Philadelphia v. Sessions, 309 F. Supp. 3d 289 (E.D. Pa. 2018)(currently on appeal); California ex rel. Becerra v. Sessions, 284 F. Supp. 3d 1015 (N.D. Cal. 2018)

 

DOJ and USCIS Join Forces Creating a Tougher Road for Employers

Posted on: May 18th, 2018

By: Layli Eskandari Deal

On May 11, 2018, U.S. Citizenship and Immigration Services (USCIS) and Department of Justice (DOJ) entered into a Memorandum of Understanding regarding information sharing and case referrals.  USCIS and DOJ state that this effort is meant to improve the way the agencies share information and collaborate on cases “to better detect and eliminate fraud, abuse and discrimination by employers bringing foreign workers to the United States.”  The Memo allows the agencies to share information and help “identify, investigate and prosecute employers who may be discriminating against U.S. workers and/or violating immigration laws.”

This Memo has been entered into by the agencies in the spirit of “Buy American and Hire American” Executive Order issued by President Trump.  This new collaboration most likely will lead to more audits, site inspections and requests for evidence and create a difficult path for foreign workers and their employers.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

DOJ Fails to Challenge 5th Circuit Ruling Striking Fiduciary Rule

Posted on: May 3rd, 2018

By: Theodore C. Peters

On March 15, 2018, the Fifth Circuit Court of Appeal stuck down the “fiduciary rule” proposed by the Department of Labor (DOL), which required brokers to act in the best interests of their clients in retirement accounts.  Subsequently, there was much speculation as to whether the Department of Justice (DOJ), acting on behalf of the DOL, would appeal that decision.  The April 30, 2018 deadline for the DOJ to appeal came and went, but …. nothing.  The Fifth Circuit’s ruling, therefore, is slotted to take effect on May 7, 2018.

In late April, AARP and several state attorneys general (including California, New York and Oregon) joined forces in seeking the court’s permission to intervene as defendants in the case, and also sought an en banc hearing before the entire 17-judge circuit. AARP contends that the court’s decision striking down the DOL rule puts Americans’ retirement security at substantial risk, resulting in an “issue of exceptional importance.”  The plaintiffs in the case, opponents of the DOL rule, formally opposed the motions to intervene on April 30.  Counsel for the plaintiffs charged that the “last-minute motions do not come close to justifying their unprecedented bid to intervene…”

On May 2, the Fifth Circuit denied the intervenors’ motions.  The court’s decision looks to be the final nail in the coffin holding the DOL’s fiduciary rule.  Despite this ruling, however, the DOL still has one more card it could play – it can file a petition by June 13 to have the Supreme Court hear the case. Even if the DOL stands quietly by and does nothing, the Supreme Court could conceivably take the case up on its own.

Ultimately, this legal brouhaha focuses attention on the SEC, which is currently taking public comment on newly proposed standards of conduct for brokers and advisors.

If you have questions or would like more information, please contact Ted Peters at [email protected].

Lions, Tigers, and… Peacocks? How to Handle Requests for Emotional Support Animals

Posted on: April 16th, 2018

By: Christopher M. Curci

Many HOA’s with a “no pets” policy struggle to properly handle requests from unit owners to have emotional support animals at the property.  Governing Boards have to balance the needs of the unit owner making the request with the competing desire of other unit owners to enforce the Association’s “no pets” policy.  We are often asked questions such as, “Do we have to allow this?” “What information can we request from the unit owner?” and, “Can we impose limitations on where the animal can go?”  Complicating matters is that the law regarding emotional support animals is broadly written and largely unsettled by the courts.

To start, emotional support animals (or “ESA’s”) are different than service animals.  A service animal is a dog that has been specifically trained to perform tasks for an individual with a disability, such as a seeing eye dog.  By contrast, ESA’s provide emotional support and are not required to have any specific training.  Any animal can be considered an ESA.  In one extreme example, an airline passenger attempted to bring her emotional support peacock on an airplane.  This ruffled United Airlines feathers, who refused to allow the peacock on the plane.

The nuances of the law can be difficult to follow.  A unit owner is not required to produce a doctor’s note to verify his or her medical needs – even a letter from a social worker could suffice.  But, if a disability is “readily apparent,” then the Association cannot ask the unit owner to provide any documentation at all.  Further, while an HOA can adopt formal procedures for requesting an ESA, it cannot deny a unit owner’s request merely because he or she failed to follow those formal procedures.  The Association cannot charge a fee to the unit owner for having an ESA, but the unit owner is responsible for any financial damage caused by the animal.  Maybe the ESA can go in common areas, but maybe not.  Confused?  You should be.

There is no “one size fits all” answer to these questions.  We have successfully defended HOA’s that have denied requests for an ESA or have imposed various restrictions on where an ESA can go.  But, each situation is unique and depends on the specific facts and circumstances of the situation.  HOA’s should be mindful that ESA requests can be legal landmines if not handled properly.  The Department of Justice has fined HOA’s $25,000 – $45,000 for Fair Housing Act violations.  Lawsuits and fines can and should be avoided with proper legal advice.

Christopher M. Curci, Esq. is member of Freeman, Mathis, & Gary’s HOA Practice Group and regularly advises and defends HOA’s in housing related disputes.  He can be reached at [email protected] or by phone at 267-758-6013.