The health system board’s audit/compliance committee should note the absence of any changes to the so-called Yates Memorandum in the recently released update of the United States Attorneys Manual (USAM).
In public speeches in September and October 2017, Deputy Attorney General Rod J. Rosenstein announced the US Department of Justice’s (DOJ’s) intention to identify, review and revise certain outstanding “white collar” memoranda previously issued by former Deputy Attorneys General, and to incorporate them in an updated version of the USAM. In his October 6, 2017, speech, Mr. Rosenstein specifically stated that the Yates Memorandum was one of those policies under review. That comment prompted widespread speculation within the bar that this review might provide some relief from the harsh provisions of the Yates Memorandum.
Contrary to expectations, changes once hinted at by the Deputy Attorney General do not appear in the September 25, 2018, release of the updated USAM. Indeed, two subsequent speeches by other senior DOJ officials served to underscore the government’s commitment to principles of individual accountability.
Thus, it remains “business as usual” for health care lawyers, compliance officers, audit/compliance committees and the board in terms of the importance of individual accountability and securing cooperation credit. To some extent, these developments strengthen the credibility of the audit/compliance committee when emphasizing to the full board, senior executive leadership and the broader workforce the importance of a vigorous compliance program.