Chapter 8 Federal Sentencing Guidelines (FSG)
Guidelines and policy in this section apply to sentencing in federal criminal prosecution when the
... [Show More] convicted defendant is an organization
FSG- 4 factors that increase ultimate punishment of an organization
1.Involvement in or tolerance of criminal activity
2.Prior history of the organization
3.The violation of an order
4.The obstruction of justice
FSG- The two factors that mitigate the ultimate punishment of an organization
1.The existence of an effective compliance and ethics program
2. Self-reporting,cooperation, or acceptance of responsibility
FSG - The 4 general principles
1. The court orders the organization to remedy harm caused by the offense.
2.If the organization operated primary for a criminal purpose or primarily by criminal means the fine should divest it of all assets.
3. Fine based on seriousness and culpability (6 factors)
4. Probation is appropriate when needed to ensure another sanction is fully implemented or to ensure steps will be taken to reduce likelihood of future offense.
FSG-High-level personnel of the organization
Individuals who have substantial control over the organization or who have a substantial role in the making of policy or has substantial ownership interest
FSG-Substantial authority personnel
Individuals who within the scope of their authority exercises substantial measure of discretion in acting on behalf of an organization. High-level included in definition . Examples manager,can negotiate contracts or prices, supervisory authority. No of these examples is required, determined on a case by case basis.
FSG-Condoned
If individual knew of the offense and didn't take reasonable steps to prevent or terminate the offense.
FSG- willfully ignorant of the offense
If the individual did not investigate the possible occurrence of unlawful conduct despite knowledge of circumstances that would lead a reasonable person to investigate.
FSG-Part B:Methods for remedying harm
1.Restitution order or probation requiring restitution.
2.Remedial order or community service when harm would not be otherwise remedied.
FSG Restitution to identifiable victim
Can be made in lump sum, partial payments at specifed intervals, in - kind payments or combination of each.
FSG-in-kind payment
1. Return of property
2. Replacement of property
3. If the victim agrees services rendered to the victim or to a person organization other than the victim
FSG - Remedial Orders
RO as part of Probation can require organization to remedy harm and eliminate or reduce the risk the offense will cause future harm. If future harm can be reasonably estimated then court can require the organization to create a trust fund sufficient to address that expected harm.
FSG-Community Service
An organization can perform community service only by employing it's resources or paying it's employees or others to do so.
FSG-Compliance and ethics program. 4 factors to consider in meeting requirements
A). Applicable Government Regulation and Industry Practice
B).Size of the organization
C).Recurrence of similar misconduct
FSG-Small Organization
<200 employees
FSG-Pervasiveness under subsection b.
Case specific, depends on number and degree of responsibility, of individuals within substantial authority personnel who participated in,condoned, or were willfully ignorant of the offense.
Obstruction does not apply to
Individuals hiding from organization
5 most important federal fraud and abuse laws
*False Claims Act (FCA)
*Ant - kickback Statute (AKS)
Physician Self-referral Law (Stark I II III )
*Exclusion Authorities
*Civil Monetary Penalties Law (CMPL)
Stark - designated health services (DHS)
*labs
*PT,OT,Outpatient Speech/Language Pathology
*Radiology, some other imaging
*Radiation therapy, supplies
*DME
*Parenteral enteral nutrients supplies
*Prosthetic Orthotic supplies devices
*Home Health services
*Outpatient Rx drugs
*Inpatient and Outpatient Hospital Services
Stark - strict liability
Proof of intent not required to prosecute
Stark
Prohibits physicians from referring patients to receive DHS payable by Medicare or Medicaid from entities with which the physician or immediate family member has a financial relationship unless an exception applies.
Stark-penalties
Fines and exclusion from federal healthcare programs.
Stark-"Stand in shoes"
DHS entity that owns or controls an entity to which a physician refers Medicare patient for DHS. =A direct compensation arrangements.
Audit- "Retrospective Audit","Baseline Audit","Snap Shot Audit"
Broad risk assessment of all areas you need to
fix. Used to develop benchmarks.
Audit-
Concurrent Audit:
Audit as issues arise then go back at 3,6 or more months to follow up.
DRA-Deficit Reduction Act
Provides states with flexibility over Medicaid Programs . Can implement innovative ideas. [Show Less]