Vermont's top federal lawyers share their priorities
When you read a headline about armed drug traffickers or people offering fake federal funds for pandemic relief, there's a story behind it. There's also probably a team of lawyers trying to prosecute the wrongdoers.
U.S. Attorney for Vermont Nikolas "Kolo" Kerest joined Vermont Edition to discuss how his office works to keep Vermonters safe from crimes including gun violence, drug trafficking and fraud. Also with him were Civil Chief Jules Torti and Assistant U.S. Attorney Lauren Almquist Lively. They focus on civil cases, including electronic health records cases, or contracting fraud by a Vermont manufacturer with a lucrative federal contract.
Highlights of the conversation are below. The interview has been edited and condensed for clarity.
What does the U.S. Attorney's Office do in Vermont?
Mikaela Lefrak: Tell us what types of cases the U.S. Attorney's Office handles, especially in comparison to say, the attorney general of Vermont, which folks might be more familiar with.
Nikolas Kerest: I am the chief federal law enforcement officer for the state of Vermont. The key word there is "federal." So our office enforces federal law across the board, criminal law and civil law, which means we prosecute federal criminal statutes, which are cases involving crimes where there's the potential that the defendants in those cases will go to jail. And on the civil side, we enforce federal law involving money.
Mikaela Lefrak: Ultimately, your boss, the top dog here, is Merrick Garland, the U.S. attorney general appointed by President Joe Biden. How are your priorities dictated by the Department of Justice?
Nikolas Kerest: That's a good question. Merrick Garland, the attorney general, sets priorities for the Department of Justice. But then each of the 93 US. attorneys around the country who have the same job as I do are imbued with discretion to set their own priorities for their own districts, depending on what's happening in those districts around the country.
So, for example, Merrick Garland has made it a national priority to focus on public safety. He's made it a national priority to make sure that the rule of law is respected. He's focused on civil rights and cyber crime, to name a few of the priorities that have been articulated by the Department of Justice in Washington, D.C.
Here in Vermont, we are focused on many of those same priorities. We are constantly trying to pay attention to what we are seeing happening around us in the state ... And here in Vermont, right now, we're trying to address the uptick in violent crime that we've been seeing. We're very focused on civil rights. And we're also focused on white collar crime and corporate fraud. It's a big priority of mine and the Department of Justice, broadly, to ensure that there is not a two-tiered justice system — that everybody is shown equal justice under the law.
Fraud cases and a focus on electronic medical records
Jules Torti: The civil division does a lot of work in the corporate fraud space. And I think that we've been lucky enough to have a few really big national cases in the civil division that have focused on holding
companies accountable, when they're not truthful when they when they commit fraud or misrepresentations. And Lauren actually handled three of our bigger cases this year, that brought in, I think, north of $75 million total, that have to do with with this corporate accountability.
Mikaela Lefrak: Lauren?
Lauren Almquist Lively: Sure. So in addition to the criminal fraud work that the office does, there's this kind of lesser-known area of law, that is civil fraud. And so what that means is if there's any federal government money, that companies or people have defrauded the federal government. Wile that sounds specific, there's actually federal money everywhere. So it could be a company that's taking shortcuts in building highways on behalf of the federal government. It could be doctors or other providers that are not providing the medical care that they're supposed to be, and then billing Medicare for that.
Our biggest focus over the last few years has been related to electronic health records. And so those are the systems that everyone experiences that their doctor or nurse is typing information into, that often seem to get in the way of medical care. And so we have been working on a series of cases where it seems like those systems were not built properly, and the companies who built those electronic health record systems kind of cheated the certification process that the government had to ensure that they're actually going to be helpful to providers and patients. And so that's just an example of how we've been working in the civil fraud sphere, to really promote safety and just fairness across companies, for both Vermonters and people nationally.
Mikaela Lefrak: I wonder if you could say a little bit more about the last type of cases that you mentioned, involving these electronic medical records.
Lauren Almquist Lively: So far, we haven't been looking at instances where there are, for example, you know, breaches of data and that sort of thing. Those are certainly areas that I know everyone's keeping an eye on. ...
Up until now what our cases have been focused on is the way these systems were built. The government about 12 years ago set up a program to incentivize providers to get electronic health records. So you're not at the mercy of bad handwriting by doctors, if you want to transfer your records to another facility that they are called interoperable is the word that we use. And so there was all this money put out on the table to incentivize electronic health record companies to create systems that were essentially the same, that spoke the same language is to make health care safer. And what we found is that that didn't happen. Companies raced to get their product to market first, took a bunch of shortcuts. And now what we see is providers are saddled with products that don't do what they're supposed to do. And so that can be that the sometimes actually create mistakes in medical health records is something we're really worried about — that the information that's entered might not always be reliable. It may not send scripts to providers, other providers or pharmacies that way they're supposed to. And so that's really the been the focus so far.
And the other component of what we've been looking at are kickbacks. So in the civil fraud world, kickbacks are a big thing. So you can't say, 'Hey, refer this to me, and I'll give you some money. So you send me a patient and I'll give you money.' That's that's a big no no when you have federal money involved. And so part of what we're looking at is these electronic health systems, they're not kind of static, they're not actually a locked box, as you said, the information can be dynamic, as you said, you know, there is the potential for the information to be sold to be misused, for there to be ads that are tailored to a patient or a provider in the electronic health record. And so it's still a growing area. It's something that we're continuing to look closely at.
Mikaela Lefrak: Civil Chief Jules Torti, you mentioned that sometimes when these cases are resolved, when you win a case or there's a settlement, millions of dollars come into the state. Where does that money go? Who gets it?
Jules Torti: The idea behind federal fraud cases is that it's the federal government that's been defrauded of the money. So the money goes back to the federal government, like in health care cases, it kind of flows back into the federal health care coffers. And that money is dispensed into all sorts of different programs into all states. So you know, in a kind of indirect way, absolutely, money flows back into Vermont.
... And I think that the amount of money, too, serves a pretty serious deterrent purpose, both in terms of deterring the specific actor from doing the same thing again, because they know that they'll be on the hook for a lot of money. But also generally, like we like to see those big numbers because they send a message to other corporations or businesses, that might also be thinking about cutting corners and putting patients' safety at risk, that if they do that, we will investigate them, and they will have to pay a significant sum of money for the harm that they've caused.
It's always good to recover money for the federal government. But I think what motivates us a lot as lawyers, is the idea that we're deterring behavior from happening in the future.
Mikaela Lefrak: And that's probably harder to measure.
Jules Torti: Oh, absolutely. ... But I think there's a sense that corporations have been allowed for a long time to be above the law. And I think what Kolo was saying earlier, it's a priority of his for our office that we hold everybody accountable, whether you're just like a regular Joe or a CEO. And I think that by recovering a large amount of money from corporations that commit serious fraud, we like to think we're sending that message to corporations.
How Vermonters help federal law enforcement
Mikaela Lefrak: Lauren, just now we were talking about ways that your office relies on the public, relies on Vermonters, for help with your cases and ways that the law can can protect people who get involved or who speak up, can you talk us through those whistleblower provisions?
Lauren Almquist Lively: Sure. And I'm talking specifically about the civil side here. And so in a lot of the fraud cases we do so the government if it identifies on its own an issue, and that can be related to, you know, data, we just heard about something from a partner, we can do our own investigations, but in a lot of the fraud cases we do, there's a provision for something called a relator. And it really means a whistleblower. And so there actually is a way that people who have heard about something, and maybe it doesn't quite seem like, 'Oh, this is a federal crime,' but some sort of misconduct by a company, by someone, they can have an actual formal role in an investigation ... Essentially, they're acting as a whistleblower to bring something to our attention.
But there's also ways that people can be really helpful to the U.S. Attorney's Office, whether it's reporting something to a hotline, to an agency, to calling us because we really do want to be responsive to the types of issues that Vermonters are seeing and oftentimes, there is a federal nexus to a whole number of issues. And so, as I said, while we can do this on our own, we also are greatly aided by having insiders who might know what's going on at companies. And the same thing is true in the civil rights arena, if Jules wants to speak on that.
Jules Torti: Yeah, we actually have a complaint form on our website for civil rights complaints. You know, on the civil rights side, we have a really powerful suite of federal civil rights laws that we enforce. I mean, it ranges from housing to accessibility for folks with disabilities. We do education work, a significant amount of education, work, language access work. And so there's almost no aspect of life that I think our civil rights laws can't touch or cover. And so we really encourage people who think that they see civil rights violations to report those via the forum on our website. We ,of course, also handle hate crime prosecutions,federal hate crime prosecutions, on the civil rights side.
Harassment and civil rights in Vermont schools
Mikaela Lefrak: Now, Jules, let's talk about a specific example here, your office has been involved with complaints of student on student harassment in the Twin Valley School District in Southern Vermont, on the basis of race and sex, these complaints occurred in the 2019-2020 school year. And in March of this year, you reached a settlement agreement with the school district, which found that the district knew of and didn't sufficiently respond to harassment and a "broader hostile educational environment." I'm wondering if you could talk us through what you can with this case and what we can learn from it.
Jules Torti: When we settle a case like that, or specifically here, it's almost like people tend to think that's like the end of a case — like, congratulations, it's done. In this civil rights area, especially with education cases, we really see that as the beginning of the work. Twin Valley has committed to spend a number of years seriously reevaluating their procedures and policies for handling student on student harassment and has committed to taking a really hard look at their environment to try to improve things for students of color, and students with gender or sexuality diversity.
So I wouldn't want to get too deep into talking about the work they're doing specifically, because it is absolutely ongoing. And but just generally, this is, you know, we've had a we had a case in Burlington, that was really similar. That concluded, I think, also earlier this year. And these cases, generally, we get complaints from parents ordinarily, that their students are experiencing really severe harassment, and that they have done the things that they think they're supposed to do as parents, which is basically go to the school and explain what's happening and ask that it stop and it has kept going. And so a lot of the time when parents get to us, they feel pretty desperate, right? Something really bad is happening to their child.
In order for us to take the case, the child or children have to be, like, meaningfully separated from their education. So if we take a case, it means that we think there's a chance the child was suffering so much from the harassment that they couldn't equally access their education in the same way other students did. And then, you know, if we think that there might be a there there — like if we think that the complaint is based on something that might have really been going on — we'll consider opening investigation. And we look really comprehensively at what the schools do. We look at policies and procedures, we talk to staff members and teachers, we review a lot of student files, and try to piece together what's happening on the ground, really, with the eye toward, you know, initially making a conclusion about whether federal law was violated — because we can't act unless federal law was violated.
But then I like to think that we're kind of non punitive. In these cases, the goal is not to punish the school, the goal is absolutely to work with the school to make things better. So, you know, we regularly are in communication with schools that have active settlement agreement about what they're doing. We're reviewing their documentation as it's being made. And the goal is to bring schools in compliance with federal civil rights laws, so that kids who are in that school who are students of color, who are LGBTQ students, whatever the issue may be, are in a safer environment.
Nikolas Kerest: I don't want to miss an opportunity to talk about sort of the other side of the coin when it comes to these kinds of issues.
Lauren talked about how it's important that people report what they're seeing, we try to do as much outreach as we can in our office. And particularly in the civil rights area, we've done a program recently going to high schools around the state and giving a presentation called United Against Hate, where we are helping students understand what federal civil rights laws are, with an eye towards their education, and also helping facilitate reporting when people do hear or see things that may fall into potential civil rights violations. ... We feel like our outreach to high school students is another part of the package when it comes to to our civil rights work. And I don't want to miss an opportunity to talk about that, and encourage other high schools that we haven't been to yet to get in touch with us, to allow us to come and make that presentation.
Mikaela Lefrak: Do you all feel like those outreach efforts have borne fruit yet in any measurable ways?
Nikolas Kerest: Yes. I've been in the office 13 years, I was the civil rights coordinator before I was lucky enough to hire Jules to do that job, and the seeds to any successful civil rights program — and civil enforcement in the fraud area, as well — is building a network of people who know what the laws are, and know what kind of work we do in our office. And so building connections through outreach is key. It also works on the criminal side. There is no substitute for getting out and meeting with people, your constituents and your partners. We have definitely seen more civil rights complaints since we've been out talking to people. We participate in Hate Free Vermont forums with the AG's office and the NAACP of Rutland. Those efforts have resulted in Jules having many conversations with individuals around the state about situations where their rights may have been violated. Not everything leads to a case and an investigation and a settlement. But those conversations are the start. And at a minimum, they give people an opportunity to articulate what's happened to them.
Pandemic and flood relief fraud
Mikaela Lefrak: Well, I want to make sure that we hit on one type of case that I think is top of mind for a lot of folks right now, which is fraud cases involving federal relief funds related to the pandemic — or more recently to the flooding that's occurred in Vermont, FEMA fraud. We've spoken to Vermont's Attorney General about this and Secretary of State about these ongoing fraud cases. Lauren, I'm curious if this is an area that you're working in, or that the office has has started to see more cases involving?
Lauren Almquist Lively: Sure. It's definitely a priority for the office — pandemic fraud — and this is the type of case that can be pursued civilly or criminally or sometimes both, because you're talking about federal money there. And so that's something that is very much a priority, you know, on the civil side, and we're looking to see to make sure funds really went to the people who deserve them. ... There are reports of, you know, rampant fraud and people abusing the system. And so that's something that we take very seriously. And I know Kolo can speak to that on the on the criminal side where it's also a priority.
Nikolas Kerest: Sure, yeah. We don't speak to ongoing cases or investigations. But we've had at least a few resolutions of pandemic fraud matters in the office. And the flooding, potential fraud related to flooding relief, is a newer factual scenario, obviously, because the flooding only happened fairly recently. But that is an area that we're in touch with the Attorney General's Office, and we have a contact there to try to collaborate, if if appropriate in that area. There's no question that that kind of fraud is some of the worst that we can see when people are suffering. And then people lie about their own conditions in order to get loans from the from the government to use for other things. And so we work with our agency partners in that area to bring those cases when we can, and we have and will continue to do so.
U.S.-Canada border issues
Mikaela Lefrak: Your office is responsible for enforcing many crimes involving the border. And in late August, I read that your office arraigned a man from New Jersey, who was allegedly bringing migrants into the US in exchange for money. And your office said that he was working with a resident of Montreal to do this. They would take folks from the Montreal area to the border near Richford, Vermont, and then arrange transportation for them once they crossed over into Vermont. And U.S. Border Patrol intercepted four different smuggling attempts last year and this year, involving about two dozen migrants, Reading the release from your office about this case, I mean, it's a heartbreaker, as many of these are you feel for the folks who are coming across the border, wonder about motivations, and I was curious about whether these types of cases are becoming more frequent as we see more and more issues at the northern and southern borders. Without going into too much detail about this specific case, what can we learn from cases like these?
Nikolas Kerest: Well, you're right, our office is responsible for enforcing federal criminal law related to immigration matters. That's definitely one of the areas that we are responsible for. Just like everything that we deal with, we are an office with limited resources. So we have to focus on the cases that we think will make the most positive impact on the criminal side, we tend to focus on public safety. Those cases that you talked about are horrific. They involve smuggling organizations that put their profits over the wellbeing of the people that they are smuggling. We, in the immigration context, try to focus our limited resources on those types of cases on those smuggling organizations and their activities around the border.
They are problematic. And definitely, if you talk to me or to folks at Border Patrol, the number of illegal crossings and the smuggling attempts are definitely way, way up since the pandemic has improved. So there's no question that there's more activity up there and we are doing our best to address that person with a particular focus on organizational smuggling.
How to contact the U.S. Attorney's Office
- If you think a crime has been committed or you're in immediate jeopardy, call 911 or a local police department.
- File a civil rights complaint form with the U.S. Attorney's Office here.
- You can also report to the Federal Bureau of Investigation at fbi.gov or 1-800-CALL-FBI.
Broadcast at noon Wednesday, Sept. 13, 2023; rebroadcast at 7 p.m.