For The Defense, February 2012 - DRI Today
For The Defense, February 2012 - DRI Today
For The Defense, February 2012 - DRI Today
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essary, some of which were unrelated to<br />
the monitor responsibilities delineated in<br />
the agreement.” As a result, the costs of the<br />
monitorship were higher than the company<br />
believed that they should have been; but<br />
when the company tried to negotiate the<br />
number of staff and the amount of work at<br />
issue, “the monitor was generally unwilling<br />
to make changes.” U.S. Gov’t Accountability<br />
Office, Corporate Crime, supra, at<br />
28 (June 2009).<br />
Monitors are paid hourly fees, which<br />
can range anywhere from $125 to $895. See<br />
U.S. Gov’t Accountability Office, Corporate<br />
Crime: Prosecutors Adhered to Guidance in<br />
Selecting Monitors for Deferred Prosecution<br />
Agreements, but DOJ Could Better Communicate<br />
its Role in Resolving Conflicts (Nov.<br />
19, 2009). Health care consultants say that it<br />
is difficult to estimate how much a monitorship<br />
would cost because some CIAs require<br />
more extensive reviews or more frequent<br />
reports than others, which, in turn, affects<br />
the number of hours required to complete<br />
them. <strong>The</strong> GAO surveyed a number of companies<br />
involved in CIA settlements in the<br />
criminal context and found that the costs<br />
for those tended to range from $8,000 to<br />
$2.1 million per month. Id. at 15. Total reported<br />
costs for monitorships ranged from<br />
$200,000 to $38.7 million. Id. at 15, n.25.<br />
Onewell- publicized 18-month monitoring<br />
contract between Indiana- based medical<br />
supply company Zimmer Holdings and<br />
former U.S. Attorney General John Ashcroft<br />
in 2008 was reportedly valued at between<br />
$28 and $52 million. Philip Shenon,<br />
Ashcroft Deal Brings Scrutiny in Justice Department,<br />
N.Y. Times, Jan. 10, 2008, at A1.<br />
CIAs in civil settlements probably involve<br />
a similar cost structure.<br />
Conclusion<br />
<strong>The</strong> OIG has promised publicly to consider<br />
a number of criteria when negotiating settlement<br />
agreements in FCA cases. However,<br />
it seems to overemphasize self- reporting<br />
and ignore other factors such as whether<br />
a scrutinized company has already developed<br />
a compliance program and implemented<br />
it. Especially in the wake of the<br />
Patient Protection and Affordable Care<br />
Act, which requires Medicare and Medicaid<br />
providers to develop internal compliance<br />
plans, the OIG should become more<br />
amenable to working with existing compliance<br />
frameworks under CCAs as opposed<br />
to requiring a bottom- up approach that<br />
automatically resorts to CIAs and independent<br />
monitors, or perhaps to settling without<br />
requiring compliance agreements at all.<br />
A more flexible approach by the OIG would<br />
prove more faithful to the criteria that it<br />
has announced and would ultimately be<br />
more appropriate, just, and effective in the<br />
health care marketplace.<br />
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<strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>February</strong> <strong>2012</strong> ■ 57