A deferred prosecution agreement (DPA) or a non-prosecution agreement (NPA) lets a healthcare company resolve a federal criminal investigation without a criminal conviction, in exchange for accepting defined obligations and a monitoring period. For a hospital system, pharmacy chain, laboratory, or device manufacturer facing a healthcare fraud investigation, the practical stakes are severe: a criminal conviction can trigger mandatory exclusion from Medicare and Medicaid, a consequence that can end the business outright. The Department of Justice reserves DPAs and NPAs for corporations, and only under the conditions set out in the Justice Manual's Principles of Federal Prosecution of Business Organizations.
What a DPA or NPA Actually Resolves
The two tools work differently. Under a DPA, the government files a charging document with the court but agrees to defer prosecution while the company meets the agreement's terms; if the company completes the term, the charge is dismissed. Under an NPA, the government files nothing at all and simply holds the agreement and the underlying evidence in reserve, ready to charge if the company breaches the deal. Both run for a fixed term, typically two to three years, and both bind the corporate entity only. An executive or physician involved in the same conduct can still face separate charges under the anti-kickback statute or Stark Law. Not every billing dispute qualifies for either tool; where enforcement draws the line between an error and a fraud determines whether a DPA is even on the table.
When DOJ Considers a DPA or NPA
The Justice Manual sets the standard directly. Prosecutors may consider a DPA or NPA when the collateral consequences of a conviction on innocent third parties, including potential exclusion from federally funded health care programs, would be disproportionate to the misconduct. The decision also weighs whether the company made a voluntary self-disclosure before any inquiry was imminent, its cooperation, and whether it has already remediated the problem. Successive agreements covering the same personnel are generally disfavored. Investigations that end this way typically began years earlier with a grand jury subpoena or a civil investigative demand. The remuneration and intent questions that turn a referral arrangement into a kickback violation are covered in our review of remuneration, intent, and safe harbors under the Anti-Kickback Statute.
The Obligations a DPA or NPA Imposes
Every DPA or NPA is built around two required elements: an agreed statement of facts describing the criminal conduct, and a statement of the Department's reasons for choosing that resolution over an indictment or a declination. The agreement typically also requires a financial penalty or restitution, periodic reporting to the assigned prosecutor, and continued cooperation with any related investigation of individuals, since DOJ policy directs prosecutors to pursue culpable executives even when the corporation resolves out of court.
An independent compliance monitor is not automatic. DOJ weighs whether the company self-disclosed, whether it has implemented and tested an effective compliance program, how pervasive the conduct was, and whether senior management participated in or ignored it. A company that self-reports promptly and can show a tested compliance program is the one most likely to resolve with a shorter NPA and no monitor. A company that concealed the conduct or let it run across multiple business units should expect a multi-year monitorship on top of the agreement's other terms.
Distinct from a Corporate Integrity Agreement
A DPA or NPA is a criminal resolution negotiated with DOJ's Criminal Division. It is not the same instrument as a Corporate Integrity Agreement (CIA), which HHS-OIG imposes as a civil condition of settling False Claims Act liability, typically running five years and requiring a compliance officer, staff training, an independent review organization, and ongoing self-reporting to OIG. A single healthcare fraud matter can produce both: a DPA or NPA resolving the criminal exposure and a separate CIA resolving the civil and program-integrity exposure on its own track.
A deferred or non-prosecution agreement resolves criminal exposure. It does not resolve program exclusion, a False Claims Act settlement, or a Corporate Integrity Agreement running on a separate track.
Why Early Legal Counsel Is Critical
It is critical that healthcare companies and their executives retain experienced healthcare defense counsel immediately upon receiving a grand jury subpoena or a civil investigative demand, well before a deferred or non-prosecution agreement is ever on the table. Early legal intervention shapes the voluntary self-disclosure decision and the cooperation record DOJ will later credit. Our guide to responding to a CID covers the practical choices that shape that record from the first request forward. Delaying counsel until charges are drafted forecloses options available at the outset.
How Health Law Alliance Can Help
Health Law Alliance defends healthcare companies and their executives nationwide against federal healthcare fraud investigations, including matters that reach the deferred prosecution agreement or non-prosecution agreement stage. Our bench includes a former federal prosecutor and a former Chief Compliance Officer at UnitedHealth Group, background that shapes the voluntary self-disclosure and cooperation record DOJ weighs before a matter advances. If your company is under investigation or negotiating a DPA, NPA, or Corporate Integrity Agreement, contact our healthcare fraud defense team for a free, confidential consultation.
