Burnette The Department of Justice (DOJ) has confirmed its commitment to pursue individual physicians, in addition to
corporate healthcare entities, for False Claims
Act violations in the 2017 calendar year.
The number of False Claims Act (FCA)
settlements that resulted in personal liability
for physicians and other healthcare providers
increased markedly in 2017 over prior years.
The DOJ entered into 26 FCA settlements
involving personal liability for healthcare
providers in 2017 and is projected to finalize
an additional six settlements before year’s
end. By contrast, the DOJ entered eight settlements involving personal provider liability
in 2016, six in 2015, and five each in both
2014 and 2013 (the years preceding the Yates
Memorandum). In total, 2017 had three times
as many FCA settlements holding physicians,
dentists, and podiatrists personally liable
than in 2016.1
The Yates Memorandum — issued
September 9, 2015 by former
Deputy Attorney General Sally Q.
Yates — plays a significant contributing role in this marked jump in
individual prosecutions. 2 The DOJ
issued the Yates Memo, at least in
part, in response to public frustration surrounding the scarcity of
prosecutions of corporate executives
in relation to the 2008–2009 financial crises and formalized a new
DOJ focus on individual prosecutions. The Yates Memo specifically
instructed DOJ attorneys to direct
their FCA enforcement efforts to
individual prosecutions and to seek
accountability directly from the individuals who perpetrated the wrongs
In the Yates Memo, DOJ prosecutors and civil attorneys alike were
directed to follow these six “key
steps” in conducting, evaluating, and
settling FCA investigations: (1) to be
by Jeremy Burnette, Sidney Welch, and Laura Little
A review of 2017 enforcement
actions against physicians
» Physicians are increasingly being investigated and held personally liable for False Claims Act (FCA) violations alongside corporate
entities in the post‑Yates Memo era.
» Many 2017 FCA settlements are related to billing for services that were medically unnecessary or never performed, suggesting
medical record documentation is increasingly critical to defending FCA liability.
» Providing and billing for substandard or different care than that required by federal healthcare programs can create FCA liability.
» Physicians should expect law enforcement to investigate and pursue them, alongside corporations, for violations of the federal
Stark Law and Anti‑Kickback Statute.
» To defend against FCA liability, physicians should perform regular exclusion checks, claims audits, and due diligence before
starting new ventures or contracting with healthcare entities.
Jeremy Burnette ( firstname.lastname@example.org) is a Shareholder and Laura Little
( email@example.com) is an Associate in the Atlanta office of Polsinelli, PC. Sidney S.
Welch, JD, MPH ( firstname.lastname@example.org) is an attorney in Atlanta, GA.